Death of a Member

Baroness Hayman: My Lords, I regret that I have to inform the House of the death of Lord Thomas of Gwydir on 4 February. On behalf of the whole House, I extend our condolences to his family and friends.

Parliament Square: Demonstrations

Baroness Miller of Chilthorne Domer: asked Her Majesty's Government:
	What changes they are proposing to the law governing the holding of peaceful demonstrations in Parliament Square.

Lord West of Spithead: My Lords, the Government published a consultation paper in October seeking views on the framework for managing protests around Parliament. That consultation ended on 17 January and we are considering the way forward, taking into account the 500 or so responses we have received. I am grateful to the noble Baroness for her full and considered response to the consultation.

Baroness Miller of Chilthorne Domer: My Lords, I thank the Minister for that reply and I am glad that he has had a large number of responses to the consultation. Does he accept that it is an affront to democracy if you cannot stand outside your own Parliament with as little as an iced cake saying "Peace" or a T-shirt saying "Free Tibet" without risking arrest? For taking an action such as standing there in a T-shirt you must seek police permission. Will he do his very best to make sure that when the Government review this issue, the law is not harmonised upwards—they are threatening to make all the conditions that apply to marches apply to peaceful protests—but is returned to the position where citizens can protest in front of Parliament peacefully and within the law?

Lord West of Spithead: My Lords, it is worth recollecting the history of this. The House of Commons Procedure Committee on sessional orders and resolutions recommended in 2003 that we should introduce appropriate legislation for a number of reasons. That was done, but it became clear that there were complications with it, and the law is not working in the way it should. That is why we have gone out to this consultation. As I say, we have had 500 responses and I really believe that we can move forward and achieve something.

Lord Marsh: My Lords, I have been around this building for 45 years or so. Does not the Minister agree that the reality of this is that every time there is a major demonstration, it moves across on to that tiny patch of earth and is followed by the police with their horses? It is not a delicate place that everybody can enjoy, but one where the police have a serious problem.

Lord West of Spithead: My Lords, the noble Lord is right; there are real issues and problems, as well as those of ensuring access to the House. It is a difficult area in the sense that several authorities have responsibility for it, such as the GLA for the grass and other bodies for the pavement and so on. However, what came out clearly in our Green Paper, The Governance of Britain, was that the basis of all our consultation has been to ensure that people's right to protest is not subject to unnecessary restrictions and with a presumption in favour of freedom of expression. That is absolutely right within the bounds of security and safety.

Viscount Bridgeman: My Lords, can the Minister confirm that no measures will be taken to extend the restrictive and undemocratic powers relating to protests around Parliament to other parts of the country?

Lord West of Spithead: My Lords, I can confirm that we do not intend to do that. I do not know the exact timelines but when we consider the matter we will have to review the 500 responses—some of which were very robust, I am glad to say, because I understand people's feelings and emotions about this. We have no intention whatever to change and increase the rules in regard to the rest of England and Wales.

Baroness Boothroyd: My Lords, if someone owns the grass and someone else owns the pavement, why does not the Houses of Parliament buy the lot and then we can do what we want with it?

Lord West of Spithead: My Lords, the noble Baroness raises an interesting point. Changes are coming to Parliament Square which the Mayor of London is considering. I have some experience of the demonstration there. Before I joined the House, I was in full uniform in my car and the demonstrator came up and accused me of being a fascist warmonger. I think I proved that I was a peacemaker because my Royal Marine colour sergeant who was driving me said, "Shall I put him straight, sir?", and I said, "No, just remain sitting where you are".

Baroness Williams of Crosby: My Lords, the Minister deserves every credit for his tolerance on that occasion. In a Statement in July 2007, the Prime Minister announced, among other things, changes along the lines of trying to permit public demonstrations outside Parliament again. This made many of us feel exceedingly encouraged. The Serious Organised Crime and Police Act under which this restriction happened was passed very quickly through the House—there was not a full discussion because the Recess was coming—and many of us felt embarrassed about preventing peaceful demonstrations around Parliament. I am delighted by what the Minister has said. Will he take the view that this matter should be handled as urgently as possible?

Lord West of Spithead: My Lords, the noble Baroness rings a chime with me. We must make this happen as soon as possible. I cannot give timelines at the moment, I am afraid, but we intend to take the matter forward very quickly—certainly within the first part of this year. The measure has not worked properly or well for a number of reasons and some people have strong views about how wrong it is. But there are also practical problems and, therefore, it is right that we should do something to change it. We should all be very grateful for the work done by people in the House to try to make this change.

Lord Soley: My Lords, my noble friend is right in saying that this needs to be changed. I am very glad he is doing so. There is a very long history to these kinds of things. The issue is not that you are not allowed to demonstrate but that you have to get permission first. That is not new; it was introduced originally by a Liberal Government just after the First Word War when they prevented people selling newspapers. Then, with the support of a later Conservative Government, the police tried to charge me with selling copies of the miners' newspaper under that Act. Fortunately they never proceeded with it, I am pleased to say, for similar reasons—it was unreasonable. We have to get right the balance between getting permission and carrying it forward. Will my noble friend try to do that?

Lord West of Spithead: My Lords, I thank my noble friend. There are complexities in terms of numbers and so on. As a sailor, it was quite easy for me because, of course, when two or more people are doing something it becomes a mutiny. This relates to fewer than two people, so it was quite understandable.

Baroness Knight of Collingtree: My Lords, as it is apparently impossible to park a car on the green across from the Parliament gates, why is it possible for a permanent collection of tatty-looking tents, washing and people to remain there for months and years? Does that dignify Parliament?

Lord West of Spithead: My Lords, the noble Baroness touches on points that all of us agree with. It looks pretty awful there. The tents have had to move off the grass. As I mentioned, a number of authorities are involved and Westminster City Council is responsible for the pavement. We will be looking at other measures and other ways of dealing with this. It does not look good, it is unsightly, and one wonders whether there is some kind of blockage there. The way to solve this is not as it has been done in the past, and that is why we shall be looking at the issue after consultation.

Viscount Tenby: My Lords, would the Minister care to comment on another aspect of this: the permanent occupancy of the south side of Parliament Square by one protester, thereby preventing other perfectly legitimate people making their rightful democratic protests?

Lord West of Spithead: My Lords, the noble Viscount makes a good point. We will have to look at that. I do not think any of us would like to have people camped on the pavement outside our houses and demonstrating, wherever we happen to live. It is an issue, but the way that it has been addressed is not the way to address it, which is why we need to make changes.

Finance: World Economic Forum

Lord Barnett: asked Her Majesty's Government:
	Whether any consensus was reached with other Governments at the World Economic Forum in Davos on major changes to the world's financial system.

Lord Davies of Oldham: My Lords, Davos is a useful platform for key decision-makers to discuss a range of policy interests, but it is not traditionally a forum for international agreement and action. The EU, the G7 and the international financial institutions remain the most appropriate forums. The Prime Minister met heads of state and government from France, Germany and Italy as well as the head of the European Commission, President Barroso, in London on 29 January to discuss the appropriate international response to the financial markets' turbulence. The G7 Finance Ministers, meeting in Tokyo on 9 February, will take these issues forward.

Lord Barnett: My Lords, I assume that means no. Does my noble friend accept that, while a consensus is clearly needed to deal with the global problems of the world at the moment, in practice a new crisis may not wait for action to be taken whether by consensus, by legislation or by any other means? The Treasury apparently issued a consultation document the other day, as my noble friend will be aware. In it, powers are proposed for the FSA to take action without necessarily involving legislation. However, does my noble friend accept that the FSA was the only body that did not know what Northern Rock was doing? Can we now be assured that the FSA will have the staff at the right levels to deal with the kind of problems covered by the consultation document?

Lord Davies of Oldham: My Lords, the FSA is some distance away from Davos. I answered on Davos because, as my noble friend knows only too well, it is a more general forum for discussions on economic and financial issues along with other issues that affect the whole world.
	The FSA has lessons to learn from last summer and autumn. It has indicated that it is currently doing a great deal of work to produce a document in March on how it intends to go further. There is no doubt that we need to look at these issues in fundamental terms, which is why we need to engage on the international level. The problems that occurred in Britain are reflective of the problems that have affected the major economies of the whole world.

Baroness Noakes: My Lords, does the Minister recall that in 1998 the then Chancellor, Mr Gordon Brown, called for the international,
	"financial architecture ... to be rewritten"?
	He trotted out exactly the same line at last weekend's EU mini-summit. Does the Prime Minister have any capacity for new ideas?

Lord Davies of Oldham: My Lords, as the House will recognise, the Prime Minister is a key figure in international discussions at this level. That is why he met the four key leaders of the leading economies of the European Union and President Barroso last week, and why they are taking those discussions forward. There is no doubt that there has been massive turbulence in the international markets over the past eight months or so, which has shaken them. The noble Baroness seems to indicate that somehow that could be laid at Britain's door. Where does she think one of the great French banks is at present? What sort of difficulties does she think some of the great American institutions are having? Directing the question solely at the British initiative underestimates the importance the Prime Minister must attach to his work alongside other world leaders.

Lord Newby: My Lords, the Minister mentioned the upcoming G7 Finance Ministers' meeting. What proposals will the Chancellor take to that meeting to enhance global financial stability? Would he accept that his position is significantly weakened by the fiscal balance in this country, which runs the risk of the Government breaking their own fiscal rules?

Lord Davies of Oldham: My Lords, my right honourable friend will also be going to the meeting as a custodian of one of the strongest economies in the western world. The noble Lord has only to think of the unemployment levels in some of our major competitor countries to realise the robustness of the British position in coping with what we all recognise is a major challenge to our economy. That is why the Chancellor will go to the meetings with the confidence of presenting to them constructive proposals on how we deal with what we all recognise are fundamental problems. None of us thinks that the solutions to these problems will emerge over the next two to three months. It is clear that the world has to think its way through the shocks to the financial system that have occurred over the past six to eight months, and that some fundamental restructuring is necessary.

Lord Lawson of Blaby: My Lords, does the Minister not feel that there is a certain lack of symmetry here? When the world economic climate was benign and the British economy was doing very nicely in those circumstances, all of it was the doing of the present Prime Minister, according to him; but when the water gets choppy and we get into difficulties, it is all the world's fault.

Lord Davies of Oldham: My Lords, the noble Lord has not presented these issues with his usual intellectual sophistication. I am sure he will appreciate that a great deal of the structural change in the British economy over the past decade has reaped important rewards in performance which marks our economy out as successful when compared with other economies. That does not alter the fact that the shocks to the financial system sustained over the past few months have been on a scale that we have not witnessed for several decades. It is right, therefore, that all international leaders recognise that they need to come together to present fresh solutions to these issues.

Iran: People's Mujaheddin Organisation

Lord Eden of Winton: asked Her Majesty's Government:
	Whether they will make representations to the European Union to deproscribe the People's Mujaheddin Organisation of Iran.

Lord Malloch-Brown: My Lords, the House will be aware that the People's Mujaheddin Organisation of Iran is currently on the domestic list of proscribed organisations. The House might also be aware that the Proscribed Organisations Appeal Commission recently determined that it should be removed from this list. Proscription at the EU level is based in part on the UK's domestic proscription. Her Majesty's Government are appealing the decision of the Proscribed Organisations Appeal Commission and the domestic proscription will remain in force until that appeals process is complete.

Lord Eden of Winton: My Lords, that Answer is disappointing, to put it mildly. Does the Minister accept that the findings of the Proscribed Organisations Appeal Commission were absolutely clear: that the PMOI is not concerned with terrorism? In those circumstances, why do the British Government persist in the policy of appeasement of the mullah regime, which has yielded no benefit whatever and is doing a grave injustice to the peace-loving people of Iran?

Lord Malloch-Brown: My Lords, the noble Lord is, I think, aware that the POAC judgment turned around particular aspects of the decision. We continue to believe that the PMOI was responsible for a number of serious military attacks over a very long period of time and that its disarming was entirely pragmatic—in the event of the coalition forces forcing it to disarm after the intervention in Iraq. We have seen no evidence that the organisation has publicly renounced violence and terrorism. We have to be consistent in our views of terrorists. When we like the people whom terrorists attack, we call them "terrorists"; when it is the civilians of Iran who are attacked, we have a bad habit of thinking of them as liberation fighters. Terrorism and its tactics are objectionable irrespective of the target.

Lord Archer of Sandwell: My Lords, will my noble friend confirm that in addition to the ruling of the European Court of First Instance and the judgment of POAC, after careful consideration of all the evidence, some years ago the American authorities in Iraq conducted a careful investigation into the allegation and concluded that it was totally without substance? Why do the Government cling so obstinately to a discredited allegation by a discredited Iranian Government?

Lord Malloch-Brown: My Lords, I cannot confirm to my noble and learned friend the circumstances of the US investigation that he refers to, but I certainly can confirm that we will respect the outcome of the appeals process.

Lord Lloyd of Berwick: My Lords, can the noble Lord give us some further indication of what the grounds of appeal are?

Lord Malloch-Brown: My Lords, the judgment arrived at was that the behaviours of the organisation really amounted to a separation from the use of terrorist tactics. We just believe that there has not been a clear enough renunciation of those tactics. Instead, we see the decision as a pragmatic one in the face of American and British force. Until we are convinced that the organisation has really foresworn those tactics, we continue to believe it to be a threat to civilians.

Lord Wallace of Saltaire: My Lords, can the Minister assure us that the Government are consistent in their definition of terrorists? We have a great variety of exiled groups in London—Tamils, Kurds, people from the north and south Caucasus and so on. We host those groups, although a number of them support opposition groups in their own countries that are not always non-violent. Are the Government confident that that they are consistent in their approach?

Lord Malloch-Brown: My Lords, the noble Lord raises a very important point. In the case of the Tamils, the LTTE is a proscribed organisation. It is quite difficult determining which groups in this country fall on which side of the line—and which support peaceful change in their countries and which support violent change and finance it. We look very carefully at that issue on a continuing basis.

The Earl of Onslow: My Lords, is not the noble Lord getting in a terrible muddle? Frankly, we supported violent revolution in Afghanistan when the Russians were there, Israel was set up by violent revolution, Ireland was set up by violent revolution and in South Africa we, to a certain extent, encouraged violence by the ANC. We cannot say that all violence against tyrannical regimes is wrong. We also supported the French resistance and the Dutch resistance in the war; Montgomery objected to that because he said it reminded him of Palestinian and Irish terrorists. Surely the Government are still in a muddle and ought to start thinking straight.

Lord Malloch-Brown: My Lords, the noble Earl will understand that we have always objected, most recently in the case of Ireland, to unwarranted attacks on civilian targets. There is a big difference between military campaigns that fall within the Geneva conventions and the rest of international law and abusive campaigns that target asymmetrically civilians. I hope we have a consistent policy towards such groups.

Baroness Turner of Camden: My Lords, is my noble friend aware that the PMOI, which is led by a woman, Madam Rajavi, has an agenda for peaceful change via a political process, believes in a human rights agenda, including women's rights, and its policies are the sort that we should support?

Lord Malloch-Brown: My Lords, I certainly concede the point that the organisation is led by a woman, but I will risk the wrath of a portion of this House when I say that despite that, and despite what it says about the rights of women, the PMOI was involved in numerous terrorist attacks for a very extended period. At the time of the second Gulf War, it was considered by coalition forces to be completely assimilated into the security apparatus of the Saddam Hussein regime. Indeed, we had to disarm the organisation to the extent of 2,100 tanks, vehicles and artillery pieces. Since then it has made no renunciation of terrorism and disarmed only in the face of pressure from coalition forces; so, despite what it has to say on women's rights, we are not convinced that in other regards this organisation has permanently renounced terrorism.

Lord Harries of Pentregarth: My Lords, it was encouraging to hear the Minister say that Her Majesty's Government would accept the outcome of the appeals process. Can we accept that, as a clear implication of that, Her Majesty's Government will accept that this organisation should no longer be a proscribed terrorist organisation?

Lord Malloch-Brown: My Lords, one must always fight terrorism in the context of the rule of law and respect for judicial decisions. One stoops to the standards of one's terrorist opponents if one does otherwise. We will fully respect the decision of the appeals process.

Offender Management

Lord Wallace of Saltaire: asked Her Majesty's Government:
	What are the implications of the announcement of 29 January on the reorganisation of the National Offender Management Service, and of recent reports of difficulties in introducing the National Offender Management Information System, for the concept of an integrated system of offender management in England.

Lord Hunt of Kings Heath: My Lords, the reorganisation of the National Offender Management Service will bring NOMS and the Prison Service together to improve the focus on front-line delivery and improve efficiency. The rescoped NOMIS programme will ensure that staff in both prisons and probation have access to information required to support offender management.

Lord Wallace of Saltaire: My Lords, I declare a strong interest, as one of those who laboured on the Offender Management Bill last year. Some of us were never entirely convinced that the Bill was rational and worth while—and nor are we convinced, from a succession of stories that are now coming out, that it will be implemented. Can the Minister assure us that the destruction of the National Probation Service, which is part of this, and the continual disruption of a very important service that keeps people out of prison, will not be exacerbated by the failure to put in place the offender management system that we were promised in one of the many Carter reports so many years ago?

Lord Hunt of Kings Heath: My Lords, I do not agree with any of those rather pejorative descriptions of our proposals. The Probation Service has to be part of an integrated offender management system. We will ensure that it continues to play an incredibly important part. We are committed to the offender management programme and that is how we will have an integrated system. It means that we will be able to continue our efforts to reduce reoffending, which are at the heart of everything that we seek to do.

Lord Henley: My Lords, if the Minister is going to accuse the noble Lord, Lord Wallace, of being pejorative, can I be a little more pejorative and say that the Minister and his department have blown something like £1 billion on a totally unnecessary attempt to reform this system? Does he agree?

Lord Hunt of Kings Heath: My Lords, no—absolutely not. This figure of £1 billion is the product of great confusion. Most of the resources given to NOMS are for the bread and butter job of running prisons and probation services. The central cost of NOMS this year is £271 million and much of that goes to direct services, such as payments to the Department of Health for the pool treatment budget. Of course we want to ensure that out of these changes we get further efficiency savings. That will also contribute to our being able to put more money into front-line services.

Lord Ramsbotham: My Lords, the Minister talks of the National Offender Management Service and the Prison Service coming together. We know about the Prison Service and the Probation Service and what they are there to do, but what is the National Offender Management Service—what does it do and what is it there to do? If the other two are doing all the work, why do you need something else?

Lord Hunt of Kings Heath: My Lords, it is there to assist and ensure operational integration.

Lord Dholakia: My Lords, the Minister may not agree with my noble friend Lord Wallace of Saltaire, but would he not accept that there have been substantial changes to the idea of the National Offender Management Service since it was first mooted? Would he confirm that we are now dealing with the final version and that the service will have the resources, in terms of both manpower and structure, that it requires?

Lord Hunt of Kings Heath: Never say never, my Lords. It is our intention that the changes being made should be entirely consistent with this approach. They are consistent with the overall changes which have occurred in the Ministry of Justice as we have taken on all these new responsibilities and which are part of the review by our new Permanent Secretary. The emphasis is on strong policy direction and strong operational management. One should acknowledge the success of NOMS over the past few years, looking at the reduction in reoffending rates, the other programmes that have been developed within the Prison Service and the expansion of probation services. There is much to recognise in terms of achievement.

Lord Wright of Richmond: My Lords, the Minister referred to some confusion over figures. Can he explain why all statistical information has been removed from the website of the National Offender Management Service?

Lord Hunt of Kings Heath: My Lords, I cannot but I am sure that it is part of ensuring that the figures are as accurate as possible—something to which my department is absolutely committed. In the light of the noble Lord's question, I shall ensure that full information is sent to him and placed in the Library.

Baroness Stern: My Lords, is there still a director-general of HM Prison Service? Is it the same person as the chief executive of the combined Prison Service and National Offender Management Service, and, if not, who is it?

Lord Hunt of Kings Heath: My Lords, final agreement on the management structure is still to happen. I think it better that we have final agreement and I will then make it available to the House. I assure the noble Baroness that, as I said, we wish to see integrated leadership, strong management within the Prison Service and certainly an identified leader for the Probation Service.

Lord Wallace of Saltaire: My Lords, does the Minister agree that a very good indicator of the success of NOMS would be a reduction in the number of people in prison? Does he accept that we can judge the success of the National Offender Management Service by whether the numbers in prison continue to rise or start to fall?

Lord Hunt of Kings Heath: No, my Lords, that would be a very misleading assumption. The reason that more people are in prison may be that we are catching more criminals who are being sentenced to prison. We have to ensure that prison is reserved for those people who need to be there and, at the same time, we need a very strong focus on community sentencing and other diversions where appropriate. That is the policy of this Government.

Torture (Damages) Bill [HL]

Lord Archer of Sandwell: My Lords, I beg to introduce a Bill to make provision for actions for damages for torture; and for connected purposes. I beg to move that this Bill be now read a first time.
	Moved accordingly, and, on Question, Bill read a first time, and ordered to be printed.

Criminal Justice and Immigration Bill

Lord Hunt of Kings Heath: My Lords, I beg to move that the House do now resolve itself into Committee on this Bill.

Moved accordingly, and, on Question, Motion agreed to.
	House in Committee accordingly.
	[The LORD SPEAKER in the Chair.]
	Clause 50 [Appointment etc. of Commissioner]:

Lord Hunt of Kings Heath: I wish to oppose the Question whether Clause 50 shall stand part of the Bill. This first grouping would remove Parts 4 and 5 of the Bill—that is, the provisions to establish Her Majesty's Commissioner for Offender Management and Prisons and the Northern Ireland Commissioner for Prison Complaints. The amendments to Clauses 196 and 200 and to the Long Title are consequential upon removing these two parts.
	As I indicated at Second Reading, we are aware that concerns have been expressed recently about the degree to which the governance and accountability arrangements set out in the Bill afford these two new statutory office holders a sufficient degree of independence from the Government of the day. Concern has also been expressed about the removal of the remit of these two commissioners from that of the Parliamentary Ombudsman. It is important to put on record that, compared with the existing administrative arrangements, placing these offices on a statutory footing already enshrines a significant degree of independence for the commissioners. The commissioners would be appointed by Her Majesty and only she will be able to remove them from office as a consequence of Addresses in both Houses of Parliament.
	Furthermore, the commissioners would be legally distant from the Secretary of State and derive their remit and powers from statute. In formulating the provisions in the Bill, account was taken of the British and Irish Ombudsman Association's criterion on independence, which is that an ombudsman's appointment should be by persons independent of those subject to investigation. In stipulating that the commissioner staff would be provided by the Secretary of State, the Bill adopts a pragmatic approach based on what we consider to be the most efficient way of staffing these offices. Similarly, we consider that the provision of finance and administrative support—for example in relation to the provision of IT systems by the Secretary of State—would avoid any additional administrative burden to the commissioners.
	Results of consultation in 2004 on the framework for a statutory ombudsman confirmed there was strong support for the removal of the commissioner's remit from that of the Parliamentary Ombudsman, on the grounds that there should be a clear boundary between the commissioner's remit and those of other statutory ombudsmen and that there should be no oversight of the commissioner by the Parliamentary Ombudsman. However, removing these provisions from the Bill will allow us time to properly reconsider, in consultation with the relevant parties, what changes may be necessary to address concerns, particularly in the governance and accountability arrangements. In reviewing the measures, we will have to ensure that any changes to the current proposals will also be viable and continue to deliver an efficient, easily accessible service for those potentially vulnerable people covered by the remit of these ombudsmen.
	We intend to consult relevant parties, which will include the Prisons and Probation Ombudsman, the Prisoner Ombudsman for Northern Ireland and the Parliamentary Commissioner for Administration to agree a time-bound plan for review of the present policy. We will also want to consider carefully the conclusions of the Joint Committee on Human Rights in respect of those provisions. We would also expect the outcome of our review to be produced later this year and would hope to have an early opportunity to reintroduce fresh legislation.
	I hope your Lordships will understand that it would be inappropriate now for me to seek to anticipate the outcome of this review. We will consider very seriously giving consideration to the other models that have been suggested and of course have regard to views that are expressed in Committee this afternoon. I look forward to hearing those views with interest and commend these amendments to the House.

Lord Ramsbotham: Half of me supports the proposal that these clauses should not stand part and half of me is opposed. Half of me is for it because one of the aspects that needs very careful examination is the title. The title, "Commissioner for Offender Management" is utterly inappropriate to the post. What is described is not commissioning, nor is it anything to do with the management of offenders. Therefore, if you introduce a confusing title, you will confuse anyone who wonders what the post is actually all about. Therefore, I hope that the opportunity will be taken to drop this title and come up with something more appropriate such as ombudsman, which is what the job is. I remind the Minister that there is a long history about the requirement for this post to have statutory status. In 1979 when the report by Mr Justice May on the running of prisons was brought to Parliament, it was agreed that there should be a restoration of independent inspection, which had been suspended since 1877.
	That examination found that three aspects needed to be independently inspected: efficiency, propriety and the investigation of grievances. In the event, inspection of efficiency and propriety was accepted as part of the role of the Chief Inspector of Prisons, a post that was made statutory, as it has remained. In 1994, it was agreed that a separate post should be established for the investigation of grievances and the ombudsman was appointed. Ever since, successive ombudsmen have tried to have that post put on to a statutory basis in exactly the same way as the Chief Inspector of Prisons post is, because it came from the same stable. I am unhappy about the fact that we are having yet more delay, on top of 13 years' delay since the appointment of the ombudsman, to the post being put on a statutory basis. I cannot see why there needs to be further delay.
	One aspect in what is described threatens the independence of the ombudsman, not just in his appointment but in the eyes of those people whose grievances he is investigating; the fact that he is seen to be too close to the Secretary of State affects his objectivity in their eyes. In his evidence to the committee in the other place, the ombudsman suggested that one way of getting over that problem would be to give him status similar to that enjoyed by the Independent Police Complaints Commission. I hope that, in conducting this review, the Minister will take account of that and not just go through the motions in looking at what currently exists in the Bill.

Baroness Falkner of Margravine: We are in two minds on this. We broadly welcome the establishment of a review to rethink this area. In light of previous legislation, it is more important that we should rethink than go forward with something that is not entirely satisfactory and I appreciate the fact that the Minister has chosen to revisit the matter. However, we should like to put two or three things on the record, in light of the comments of the noble Lord, Lord Ramsbotham. It is vital that the person, whatever he or she is called, be visibly independent, particularly in relation to—I know that the Minister has mentioned some of these things—the budget, the staff, the relationship with the Secretary of State, investigatory powers, directions from the Secretary of State vis-à-vis investigations and the way in which reports are laid in the public domain. Finally, the Minister talked about bringing forward fresh legislation forthwith. Does he expect to do so this side of the next Queen's Speech?

Baroness Stern: I welcome the proposal to remove these clauses from the Bill in the circumstances, but I agree that it is a pity that we have had to do this. I should like to say a few words to remind the Minister why these measures are important. In its December 2004 report on deaths in custody, the Joint Committee on Human Rights noted that the evidence that it had received showed widespread concern that the Prisons and Probation Ombudsman was not on a statutory footing and that this failure would undermine the independence and perception of independence of his inquiries into deaths in custody. Evidence from the Minister to the committee at that time confirmed that the Government accepted the need for the post to be on a statutory basis and agreed that that should be accomplished as soon as possible. That was pre-December 2004.
	The Joint Committee on Human Rights recommended in paragraph 332 of its December 2004 report:
	"As a matter of priority parliamentary time should be set aside to bring in legislation giving a statutory basis to the Prisons and Probation Ombudsman, and providing him with investigatory powers equivalent to those of the Independent Police Complaints Commission. Until such a statutory basis is provided, investigations by the Ombudsman are unlikely to meet the obligation to investigate under Article 2 ECHR".
	In the debate on the Corporate Manslaughter and Corporate Homicide Bill and the matter of deaths in custody, the noble Baroness, Lady Ashton, made a commitment, and agreed that the offence of corporate manslaughter,
	"ought to be capable of applying to custody",
	and before that was to be done the Government would find an opportunity to put the ombudsman on a statutory footing, which would,
	"strengthen the investigation of deaths in custody in three ways. First, there will be a formal duty on the ombudsman to examine all deaths within his remit".—[Official Report, 22/5/07; col. 575.]
	She said that he would be empowered to decide the scope of investigations and procedures, and that investigations and recommendations would be expected to cover management and wider policies where he deemed it appropriate. Secondly, the noble Baroness promised that there would be new High Court powers to obtain evidence as well as a clear foundation for working with other ombudsmen where appropriate. Thirdly, she indicated that the statutory basis would strengthen the ombudsman's independence from government.
	The noble Baroness went on to say that the Government's intention was to,
	"find a suitable Bill in this Session or, if necessary, the next".—[Official Report, 22/5/07; col. 576.]
	Since we are now in the next, I hope that the Minister can assure us that he has a real sense of urgency about this proposal.

The Earl of Onslow: I rise in—despair is not exactly the word I am looking for, but it is not a million miles away from it. An enormous chunk of this Bill has now been taken out, which had it been properly thought through in the beginning would not have to be taken out. Those of us on the Joint Committee on Human Rights see an enormous chunk of this Bill as being in urgent need for amendment, parts of which were not discussed in the House of Commons. Is this really how legislation should be presented to Parliament? It seems to fit exactly into the words of the general confession:
	"We have left undone those things which we ought to have done"—
	I note that the Bishops are listening—
	"And we have done those things that we ought not to have done; And there is no health in us".

Lord Henley: I shall assist my noble friend, if I may, by assuring him that it is even more complicated than that. Of the 50 or so clauses that have been taken out, 25 were there at the beginning and 25 were among those brought in on Report in another place that were not discussed, and which are now being removed in this House without further discussion.

The Earl of Onslow: Perhaps despair is the right word.

The Lord Bishop of Chelmsford: I remind the House that Ash Wednesday is tomorrow if noble Lords wish to pursue the general confession.
	I underline the sense of urgency on this matter and the importance of the statutory independent basis of this. The Minister will be aware that Bishops have rights of entry into prisons and often have close relations with their local prisons. In our part of the country we have been in the local press with regard to deaths in custody recently, and some important aspects of this issue need to be tackled, not least the fact that those who succeed in taking their own lives in prison are but the tip of the iceberg of the attempts made to do so. I am concerned about the morale of staff in prisons in relation to these matters. That is why the statutory basis should be independent. There needs to be clarity of structure and a proper sense of accountability, so that those who are managing our prisons in their present state of crisis have a sense that they are getting proper public support.

Lord Kingsland: I think that all your Lordships are agreed that a statutory basis for this post is crucial; but it has to be the right statutory basis. When Lord Gardiner, the then Lord Chancellor spoke in 1967 to your Lordships' House about the establishment of the Parliamentary Ombudsman, he stressed two matters. The first was the ability of the new post to enhance Parliament's capacity to scrutinise the Executive. The second was its capacity to secure remedies for citizens treated unjustly by a public body. More recently, the Council of Europe has emphasised the importance of ombudsmen to the promotion of the rule of law and the protection of human rights.
	Crucial to those objectives is the independence of the office of ombudsman. The problem is that under the Bill's provisions, which the Minister now seeks to withdraw, the office is not independent. That is exacerbated by the fact that the citizens over whom the ombudsman will have jurisdiction are incarcerated by the state.
	There are a number of reasons why the position is not independent. The funding of this new office is to be determined by the Secretary of State, not by a levy on those investigated or by money supplied directly by Parliament. Indeed, the staffing arrangements are subject to the discretion of the Secretary of State. The office holder is to be accountable to the Secretary of State, not directly accountable to Parliament. The office holder will be under a duty to investigate any matter which is the subject of a request by the Secretary of State, who will be able to direct him as to the scope of that task. The annual report is not even being sent directly to Parliament; it goes to the Secretary of State first and the Secretary of State has discretion on when it should come before Parliament. All those matters must be addressed by the Minister during the period that elapses between now and when the Government choose to bring the matter back.
	I am sure that the Minister will have received, as I have, a letter from Mr Brian Coulter, the Prisoner Ombudsman for Northern Ireland. Along with the measures for England and Wales, an additional part deals with Northern Ireland. I shall be most interested to hear from the Minister what he thinks the position will be there. The defects of the position for Northern Ireland are exactly the same as those for England and Wales, but there is an added complication for Northern Ireland, which is the issue of devolution. At some stage, the powers and the office with it will be devolved and consideration will have to be given in Northern Ireland to what kind of arrangements they want there. What can the Minister tell us about that? What forecasts about the timing, context and nature of the devolved arrangements has the Minister made in drafting that part? We are all agreed that it should be statutory, but that is only the beginning.

Lord Hunt of Kings Heath: I thank Members of the Committee and reiterate that I will take very careful account of them in taking this work forward. I am afraid that it is sackcloth and ashes. On scrutiny, I acknowledge that new clauses were added in the Commons; I have no doubt that your Lordships will want to give them particular attention when we come to debate them in due course.
	Whatever comments have been made about the current processes and rules under which the ombudsman works, on behalf of the Government, I place on record my admiration for the work of the current ombudsman, who I believe has done an excellent job. As noble Lords said, the Government are as committed as ever to putting this on a statutory basis. I want to make it absolutely clear that we are committed to establishing this office by statute. The question then arises of when we will be able to do so. I cannot give a definite date. However, we regard this as an urgent piece of business to be undertaken. We expect the review outcome to be produced later in the year and then to have an early opportunity to introduce fresh legislation. I cannot go any further than that today.
	There have been questions about independence, the Secretary of State's ability to ask the ombudsman to take on certain functions, and about direct accountability to Parliament. I have listened. We thought that we had got it right in the Bill. It is clear that many comments have been received, and we will consider those very carefully. The noble Baroness, Lady Stern, was right to mention the Corporate Manslaughter and Corporate Homicide Act 2007. I reassure her that we are committed to statutory provision.

The Earl of Onslow: I am sorry to interrupt the Minister. There is one thing that I did not say. It is refreshing when Ministers actually listen to Parliament, especially when someone has—to use a slightly diverse literary tactic—blundered. One ought to thank the Government for listening to Parliament, even when they have made a monumental mistake.

Lord Hunt of Kings Heath: There is always a "but". But since it is very rare for the noble Earl to commend the Government, I will take that as a half-commendation at least. Something will come of it. I reiterate that we believe it should be put on a statutory basis. We want to get it right and we are determined to do so.
	On Northern Ireland, I cannot give the noble Lord a definitive answer. We are considering how best to take this forward in the context of devolution. Our thinking currently is to continue work on it which, if appropriate, could then be transferred to the devolved department of justice. That seems the best way of doing it, in addition to consulting the relevant interests in Northern Ireland. It is a matter that my officials have considered. They are pondering how best to take it forward to most effect. The Northern Ireland ombudsman's comments were one of the influences in making the decision and played an important role in our asking the House to withdraw the relevant clauses.
	As for the proposed title, I know that the noble Lord, Lord Ramsbotham, has never liked it, and we will take note of that. "Commissioner" is a very honourable title. Although we all talk about the Parliamentary Ombudsman, in statute the title of that post holder is "commissioner". The same applies to the Health Service Commissioner and a number of other ombudsmen. Although I understand what the noble Lord says about management of offending, that is perhaps—to take us back to the Oral Question earlier today—part of the integrated approach that we wish to see. However, regardless of whether it is in statute or is only generally recognised, we want a title in which people will have confidence. I will take that point away too.
	I think that I have answered most of the points.

Lord Lloyd of Berwick: Has the Minister taken on board—I am sure that he has—the overriding importance of ensuring the independence of the ombudsman, commissioner or whatever one calls him?

Lord Hunt of Kings Heath: That is not in doubt; the question is how that would be best expressed in statute and operations. We considered that the provisions in the Bill would have assured that independence. However, we have received some comments suggesting that that is not the case. That is why we will reconsider. If the public, prisoners, their relatives and prison officers are to have confidence in the ombudsman, they must have confidence in that person's independence.

Lord Trimble: Further to the point about the independence of the ombudsman/commissioner, it follows from what the Minister was saying that if devolution were to occur in May, as the Government hope, they would then transfer responsibility for this to the Administration in Northern Ireland. If that happens, what steps will the Government take to ensure that any commissioner subsequently created in Northern Ireland would be wholly and truly independent? Or will they simply abandon that principle and rely purely on the Northern Ireland Assembly?

Lord Hunt of Kings Heath: I am going to duck that, to a certain extent. As I said, we are still considering the matter. It seems best, given that we are only in the early part of February, to continue the work. The other option is to put Northern Ireland to one side and await events. If we carry on with this work, the necessary discussions between ourselves and Northern Ireland can then take place to ensure that we produce something effective. However, I take the noble Lord's point and will ensure that it is considered.

Lord Henley: If the Minister is going to duck that, why on earth did the Government introduce the Northern Ireland provisions in another place? They were part of the vast number of clauses that were introduced but not discussed in another place. The noble Lord is now removing them but also says that he wants to duck the issue.

Lord Hunt of Kings Heath: I said that I wanted to duck giving a precise answer because we have not reached a conclusion. There is complete consistency in what I have said. Given that we wish to seek the House's approval for withdrawing those clauses from the Bill, it makes sense to take forward detailed work in the light of developments in Northern Ireland. That is all.

Lord Henley: I fully accept that and I fully accept that the noble Lord is in what he describes as sackcloth and ashes mode, which is very appropriate for Shrove Tuesday. I am simply saying that introducing all these provisions in another place, not discussing them there and then withdrawing them here seems a very funny way in which to legislate.

Lord Hunt of Kings Heath: The noble Lord will have his fun. I have explained why we are seeking the Committee's approval for withdrawing these clauses. I think that this debate has been very helpful in identifying those matters which we need to consider further, including Northern Ireland. On that basis, I hope that we might be able to proceed.

Baroness Linklater of Butterstone: The Minister could do no better than look north of the border to Scotland, where there is a perfectly good model of an independent inspector of prisons.

Lord Hunt of Kings Heath: I agree that we should look at the experience of ombudsmen in other areas and we will do so.

Clause 50 negatived.
	Clauses 51 to 97 negatived.
	Schedules 9 to 17 negatived.

Baroness Stern: moved Amendment No. 1:
	Before Clause 1, insert the following new Clause—
	"PART A1Principles
	Principles of the youth justice system
	(1) Section 37 of the Crime and Disorder Act 1998 (c. 37) (aim of the youth justice system) is amended as follows.
	(2) Before subsection (1) insert—
	"(A1) The youth justice system shall ensure that it carries out its functions in accordance with the following principles—
	(a) the best interests of the child shall be the paramount consideration,(b) arrest and deprivation of liberty of a child shall be used only as a measure of last resort and for the shortest possible time, and(c) the child shall at all times be treated with humanity and respect for his or her inherent human dignity.""

Baroness Stern: The amendment arises from a concern that in the part of the Bill dealing with youth justice we shall find ourselves dealing with technicalities and will not have an opportunity to ask the Government some basic questions which will help us later on. For example, where do these proposed changes fit in? What is their contribution to the Government's vision of the system? Indeed, what is the Government's vision of the system? How is it evolving as the joint unit between the Ministry of Justice and the Department for Children, Schools and Families develops?
	This amendment sets out a statement of principles to go at the beginning of the Bill, which would make it clear to all those working in the system what they were supposed to be doing, and how the Government propose to hold them accountable for compliance with the UN Convention on the Rights of the Child, to which the Government are a signatory and which Ministers have, therefore, committed themselves to upholding. I am very grateful to the Standing Committee on Youth Justice for the excellent work that it has done on the Bill and for its support for noble Lords in preparing background material.
	For various reasons, we have seen in the past few years a drift away from the basic principles that should govern a youth justice system and that are the reason why we have a distinctive system which is not the same as the system for adults. Children are not adults; they are still developing and still very vulnerable. It is undeniable that our youth justice system has gradually moved in a direction that takes it a very long way from the mainstream of systems in comparable countries. I hope that recent developments, such as the involvement of the Department for Children, Schools and Families, will start a countervailing movement back to the norm.
	We have indeed gone a very long way from what is seen as normal in most countries. Our age of criminal responsibility is extraordinarily low. At a meeting chaired by the noble Baroness, Lady Massey, in this House on 24 January, we heard that in Denmark, Germany and Spain, the age of criminal responsibility is 15, 14 and 14, respectively. I must declare an interest as that meeting was arranged by the International Centre for Prison Studies at King's College, where I have a position.
	The consequence of the practice elsewhere is that, for all children under those ages in those countries, the measures taken are covered not by criminal jurisdiction but by welfare law. Those countries have various types of government; the approaches are not related at all to Governments of one particular colour or ideology. They are the mainstream, normal way of dealing with children in trouble. I know that increasing the age of criminal responsibility would be difficult because it would be misunderstood as meaning that no action could be taken against children who are under that age, but that is completely wrong. I therefore hope that we shall in due course have a fruitful discussion on proposals to be made by the noble and learned Baroness, Lady Butler-Sloss, to deal with children under 14, where appropriate, in the family court.
	We in England and Wales are also remarkably out of line in using custody for children, and particularly in using it as punitive custody rather than as custody for care and protection. We were all saddened last year to read the inquest verdicts on two boys who died in custody, one aged 14 and one aged 15. We know that in most similar jurisdictions they would not have been in a place of punitive custody, if they had been locked up at all. They would have been in a place akin to local authority secure accommodation that is part of the system of caring for children and they would not have died. We are out of line in using the criminal process to deal with myriad types of behaviour that are quite common among children and young people, behaviour which they grow out of or which can be dealt with more effectively in other ways. We are way out of line with other jurisdictions.
	We are also way out of line with our international human rights obligations. The basis of these obligations, and particularly of the UN Convention on the Rights of the Child, is that children should be protected from harm and given the chance to grow up into healthy adults who contribute to society. The Minister will be aware that last April the Committee on the Rights of the Child issued a general comment—a form of detailed guidance setting out what is expected of countries that have ratified the convention in their juvenile justice systems. The committee sets out its view that,
	"a minimum age of criminal responsibility below the age of 12 years is considered ... not to be internationally acceptable".
	The committee also sets out part of what it means to make the best interests of the child the guiding principle. It says:
	"The protection of the best interests of the child means, for instance, that the traditional objectives of criminal justice (repression/retribution) must give way to rehabilitation and restorative justice objectives in dealing with child offenders. This can be done in concert with attention to effective public safety".
	I am eager to hear the Minister's reply to the amendment, because I wonder on what grounds he will resist it. Will he oppose it because the Government wish to take actions that are against the best interests of the child? I doubt it very much. It is clear that making the best interests of the child paramount does not mean that we cannot pay regard to public safety. Clearly it is not in the best interests of a child to be violent to others or to make the lives of everyone in the neighbourhood a misery, but when we take action to stop that, surely we should take actions that help the child to grow up healthy and non-criminal. That is what "in the best interests of the child" means. Can the Minister really oppose having such a principle in the Bill?
	Secondly, should we not try to keep children out of the system, and out of custody, as far as possible? Would the Minister not agree with that, too?
	Thirdly, I cannot imagine that the Minister envisages any situation in which it would not be right to treat a child with humanity and respect for his or her human dignity. I look forward to debating the amendment, and I beg to move.

The Lord Bishop of Chelmsford: If no one else is going to speak, may I say how sympathetic I am to what the noble Baroness has said? Do we not need to say in this House and in Parliament that in this nation of ours we have far too many children and young people in custody? Surely the aim of legislation should be to assist us to turn that culture around and move in a new direction. The issue was raised in the report of the Joint Committee on Human Rights, which says:
	"We note the Government's statement that it strongly believes that custody for young people should only be used as a last resort. However, we note that in the Government's response to our predecessor Committee's recommendation, it said"—
	and so forth. It continued:
	"As presently drafted, however, there is nothing in the Bill to require that a YRO with ISS be the first resort, before custody, other than in exceptionally serious cases ... In our view, such a requirement would be an important additional safeguard to ensure that custody of children is only used as a last resort".
	That is why the amendment raises an issue that the Government need to address.
	For a number of years, my wife had professional work in the field of children held in custody. We know that the behaviour of some children and young people is deeply challenging to society. The easy thing to do, dare one say, is to whisk them out of society rather than think of other means of addressing the issues. We also know that custody is the place in which the highest safeguards have to be set out if the interests of children who have been locked away are to be protected.
	I shall be very interested to hear the Minister's response to the amendment. It is important and it will be good to hear about the Government's commitment to moving in these directions.

Lord Judd: I rise warmly to support this amendment. In doing so, I hope that the Committee will forgive me if I make a personal observation. We are fortunate to have in our midst someone with the experience of the noble Baroness, Lady Stern. She has unrivalled experience in her leadership of Nacro and her work since. I usually sat next to her when we both served on the Joint Committee on Human Rights and she always struck me as one of those people who has learnt so much from life that she goes on learning and responding to what she learns. She often helped the committee to reach its conclusions because of the wise way in which she approached matters. For that reason, it is terribly important to take anything she says in our deliberations very seriously indeed.
	I want to make a couple of points. First, either we believe that the principal and overriding objective of our penal system should be rehabilitation, or we do not. Of course the public must be protected, and the way some of the more irresponsible press suggests that if you are emphasising rehabilitation you are somehow not taking the job of protecting the public seriously is really quite iniquitous. Those of us who emphasise rehabilitation take the protection of the public very seriously—not only in the immediate situation but in the long term, which lies in the realm of successful rehabilitation. What disturbs me is that there is a great deal of evidence that children and—dare I say it without diverting too much attention?—young people caught up in the system as it is at the moment begin a life of criminality. The system institutionalises their exclusion from society and their criminalisation. That is not the case for all, but for a very considerable number. That is not only wrong, but stupid because it works against the interests of society and its protection. This amendment is timely in the sense that it gives us an opportunity to think about all this. I say that because for no one is it more important to make rehabilitation a priority than it is for the young.
	The second point is that I do not for a moment doubt the good intentions of Ministers to make imprisonment a last resort, as the right reverend Prelate has just said, but I suggest that it is important always in public policy to examine the difference between intention and what actually happens. If we are going to make intention a success, it has to be explicit from the outset and it has to be spelled out whenever the opportunity presents itself over and again.
	Perhaps I may conclude with just two anecdotal examples. It can be dangerous to use anecdotal evidence because it can be very untypical, but sometimes such evidence enables us to see more clearly the underlying issues we are facing. I have mentioned the first in Joint Committee and at Second Reading. In my nine years as president of the YMCA, I became particularly interested in the first-rate work it was doing in detention centres and prisons. I do not believe in being only theoretically informed so I went to see this work in several prisons and detention centres. The stories that the staff were telling me over and again of the young people with whom they were dealing, which were beginning to come out in the context of the real and deep relationships that had been formed, were a terrible reflection on society. It was difficult not to come to the conclusion that many of the children caught up in the system were victims themselves. Their anti-social behaviour of course cannot be tolerated—the noble Baroness made this point—because it can create mayhem and absolute hell on earth for some of the communities in which the delinquency takes place. No one wants to sideline that, but it would have been quite extraordinary if they had not started to behave in that way because of the reality of their lives.
	My second anecdotal story and my final point relates to a dear friend of my family and a close colleague in my political life, the late Baroness Lester. She was a very close friend of us all in my family and godmother to one of my children, and if I refer to her as "Joan" it brings her alive for me. When Joan was a Member of Parliament, I remember her coming to our home in an uncharacteristic state of real distress. Joan was experienced in life and not the kind of person normally to get distressed, but she was really in a state. In the context of her responsibilities as a Member of Parliament, she had been to visit one of the children responsible for the appalling and dreadful murder of James Bulger. I shall never forget what she said: "What is so terrible about this situation is that the child involved in the murder has never been loved in his life". In view of all her work with children, this had become abundantly clear.
	Just as I have said that we either believe in rehabilitation or we do not, we either understand that children are children—wherever they are, whatever they have done—or we do not. If we understand that, we need to spell out, not only by exhortations and undertakings but in the detail of our legislation, that they shall at all times be treated as children, and that paramount in our considerations should be the best interests of the child. As the noble Baroness brilliantly put it, by having the best interests of the child in mind one will be serving the best interests of society.

Lord Elystan-Morgan: I, too, totally support the amendment and the powerful way in which it was moved by the noble Baroness, Lady Stern. When she says that children are not adults, it goes to the core of the situation. They are not truncated adults; they are a totally different species and, in their own right, deserve to be treated in a wholly specific way.
	My submission is that nothing in the amendment would in any way frustrate or embarrass the administration of justice to young people. For example, the words,
	"shall be the paramount consideration",
	echo those in Section 1 of the Children Act 1989 that when dealing with young people—and a young person, for that matter—the "paramount consideration" shall be the interests of the child. Regarding the attitude of the courts towards young people, I cannot remember who the learned judge was, but he was a figure of immense distinction, who said, in giving a judgment of the Court of Appeal in a youth case some 30 years ago: "Society has no higher interest than the reformation of a young man".
	There are young men—and indeed children—who are very dangerous and have to be in custody, but they are a small minority. I make no apology for reiterating what I have referred to on more than one occasion in this House over the past few months: we incarcerate more children and young people that any other country in western Europe. I do not have the exact figures with me but I have previously given them to the House. I remember that we incarcerate more than Germany, France, the Netherlands and Norway all put together. It has been said about our rates of incarceration of adults that we are catching more of them, but there can be no question of saying that in this regard. That is not the reason for these figures. The reality of the situation is that we have an attitude that is harsher, less realistic and less humane than those of judges in other countries.
	The noble Baroness, Lady Stern, raised the question of how high the limit should be with regard to criminal responsibility. I make the point, with some pride, that we already went partly down this path 40 years ago when the Children and Young Persons Act 1969 came into force. There was provision in that Act for the age of criminal responsibility to be raised as high as 14 by Order in Council. Exactly when that was removed I do not know, but I think it was some six or seven years thereafter.
	The amendment is practical, humane, intelligent and entirely justified. In essence, it says nothing more than what has already been said by Parliament and the courts in this context.

Lord Hylton: When the Minister comes to reply, will he take the opportunity to state the Government's intentions regarding the extension of restorative justice to children and young people? At the moment we have restorative cautions, which work reasonably well on the whole, but will the proposed youth rehabilitation orders, which we are coming to in the Bill shortly, be able to include restorative provisions? To stimulate the Minister's imagination, if I can, I tell him that most children most of the time want to be useful. Pretty well all children easily understand what it means to put right the harm or damage that they have done.

Baroness Linklater of Butterstone: I gladly added my name to the amendment alongside those of the noble Baroness, Lady Stern, and the noble Lord, Lord Judd, who always have important things to say to us. I add my voice to theirs, for this is a very important issue for us to discuss at the outset of the Bill. It should help to clarify the overarching principles which inform the shape of the Bill and Government's vision for the way in which we deal with children who offend in this country.
	It was widely commented on all sides of the House at Second Reading that the Bill seemed to lack a theme or any such overarching vision, so this is perhaps the moment to try to tease out what should guide our thinking and practice when we legislate for those children we are so concerned about, in the interests of justice, the children and our society.
	The distinction between principles and purposes means that the former are philosophical and the latter more practical, but they are closely intertwined. The Bill refers to purposes but nowhere to principles. It is clear that at every international level where principles are laid down—I have in mind the UNCRC and the Beijing Rules, in particular—the one overriding principle is that the welfare and best interests of the child must be the primary consideration. Indeed, Article 3 of the UNCRC states that it is an obligation.
	When the Bill considers the purposes in sentencing, the fact that this principle is not explicitly stated as being at the heart of the youth justice system gives real cause for concern, particularly because so much flows from it in terms of decisions to be made in youth justice and children in trouble. It is a glaring omission. It should not be an add-on, nor a purpose along with others, but the overarching principle.
	Public attitudes to children are in large measure influenced by our sentencing policy, particularly when we are dealing with children in trouble. We have worked very hard in this country during the past few years on provisions for children and families, and I commend the Government for that. However, something seems to happen when troubled children become children in trouble—and attitudes do change. We then become, through many of the agencies which deal with children and young people, far more punitive, retributive and demonising of young people, which is reflected in particular in our attitudes to policing, sentencing and even schooling in the management of our difficult, disruptive, disturbed and disturbing youngsters. The result is that we are developing a far more alienated, demonised and difficult population of young people, who we then forget are still children like our own.
	Children, as has already been affirmed today, must be treated differently from adults. They are so physically, psychologically and experientially. The Beijing Rules require that the juvenile justice system emphasise the well-being of the juvenile. The Children Act 1989 can show us the way, with, for example, the child-in-need assessments, a welfare checklist and a common assessment of each young person. When we talk generally about custody being a sanction of last resort for all offenders, it is even more acutely true for children and must be for the shortest possible time. We will discuss in detail during the passage of the Bill how this is not, in reality, the case in Britain today, but we must start by at least affirming this principle in the Bill. Ultimately, we are talking about a profound shift, not simply in processes and procedures, but in the attitudes of all of us, including the authorities and the courts.
	I remind the House once again that, in another part of the United Kingdom, with another legal system, no child prisons exist as they do in England, and children do not enter the criminal justice system until they are 16. In Scotland, we have the children's hearings systems and the children's panels, which see and seek to meet the needs of any child in trouble as they address their deeds. Here I declare an interest; I was a children's panel member for eight years and participated in a system of which we are very proud. There are also some very impressive, welfare-oriented, secure children's homes, all of which we can learn from. The records in England show that in the STCs—our child prisons—children have died from restraint-related incidents; one has even died in the course of being restrained. These children are, as we constantly remind each other, the most deprived in our society and their reoffending rate is the highest of all.
	We have already heard from the noble Baroness, Lady Stern, how shamefully we compare with other countries in our treatment of young offenders; but we do not need comparisons to know that this record is totally unacceptable and is a million miles from treating children
	"with humanity and respect for his or her inherent human dignity"—
	the last principle in the amendment.
	Finally, I add my concerns about what I call the principle of probity. If we indeed legislate for a real shift from prison to an expansion of community-based penalties—which is, I think, the presumption of the Bill—that provision must exist. Yet today all the agencies in the community that would be expected to deliver these alternatives, including probation and many other agencies, have been required to cut their current provision—far less expand it—with all the planning, manpower and huge costs that that implies. Can the Government reassure us that all that we are legislating for in the Bill can be delivered and that the balance between prison building and community investment is reversed? Otherwise, we are merely building castles in the air and deceiving ourselves and the country.

The Earl of Onslow: I shall refer to this excellent brief from the Standing Committee for Youth Justice, which shows that rehabilitation cannot be what the Government are achieving. Eight out of 10 children reoffend. We lock up 23 per 100,000; the Finns lock up one-fifth of one child per 100,000. Clear-up rates have been stable since 1995 and 42 per cent fewer people report being victims of crime. However, while 100 under-15s were convicted and sent to prison in 2002, that number has increased to more than 800, only 50 of whom were serious offenders.
	What on earth is the point of sending another 650 children to the nick, when it seems to have had no effect whatever on recidivism rates and has made absolutely certain that, of those 650, only 120 will not reoffend. This cannot put the interests of the children at heart but those of tabloid headline writers. Of course one concedes that children can be toerags and disgusting. My late mother said that when I was 15 I entered the "awkward age"—or rather, as she had some pretension, "l'age bête"—and until the day she died aged 75 she never conceded that I had left it. We cannot leave the point that there are little horrors about, but they need more care and attention to try to stop them being little horrors. This should be put in the Bill and with a glad heart, I support my noble friend—I say that advisedly—Lady Stern.

Baroness Howe of Idlicote: I wholeheartedly support this amendment. It has been moved brilliantly by my noble friend Lady Stern, and all the contributions have underlined different aspects of why it is so crucial. I have been involved with children and courts for a considerable period of my life and know how effective some methods can be—and equally, how totally ineffective others can be. This Bill is an attempt—but a muddled attempt—to begin to make things better and to make it clearer that there could be a range of other activities and diversions. I suggest that what the Bill needs, above all, is an overriding, overarching principle. As the noble Baroness has just said, you need something through which you can interpret what you can do in the best interests of that child. The amendment mentions the best interests of the child and that
	"the arrest and deprivation of liberty of a child shall be used only as a measure of last resort".
	At a later stage, we shall look at the age threshold for a child to be sent to an adult prison. All that forms the background to what we are talking about.
	Community-based sentences are clearly the future. We have to admit that legislation passed by this Government has increased the number of people—women, children, men—who have been sent to prison. The system has become far more punitive than necessary and far harsher than the one that worked in the past. One understands the desire of all Governments to appear—and be—effective in preventing violent crime. Community-based sentences will help the Minister and the Government to achieve their aims, which are increasingly rehabilitative and aimed at trying to save so many children who, if worked with properly, can grow up and come out of offending, rather than fall into this horrendous reoffending pattern that we have seen, particularly with young offenders, where something like 96 per cent reoffend within a short period.

Lord Ramsbotham: It is always a privilege and an education to follow the noble Baroness, Lady Stern—as the noble Lord, Lord Judd, has said. It is also a privilege to listen to the wisdom and humanity of the speakers in this House on this important issue. I was very interested that the noble Lord, Lord Judd, mentioned one of the two boys involved in the Bulger case. I also went to see one of these boys and discovered, through talking to the psychologist and psychiatrist who had looked after him through the trial, that, although he was 10 at the time of the incident, his developmental age was four. In order to deal with him, she had to act as if he was four and take toys from her four year-old son to engage him. She said, "I have never stopped wondering how this country could put somebody with a developmental age of four into a High Court situation at the age of 10." I am very glad that the issue of the age of criminal responsibility has been raised again, because I think that it is a disgrace that this country continues with that particular situation.
	I strongly support the amendment because it reflects my experience as Chief Inspector of Prisons. I found that an awful lot of what was put out by government was prepared by officials who had absolutely no experience of what they were talking about and therefore no idea of the principles and standards that they needed to underpin what they said. As Chief Inspector of Prisons, I produced a document, which I called Expectations, setting out precisely what those principles and standards should be for all the prison rules. Having prepared one for adults, we then did another for children and young people, because they were very different. The guide and leader of that process was a remarkable man, who was my deputy at the time. He had governed a young offender institution and, before that, had been the housemaster at a borstal. He said that borstals were positive places, where those sentenced at Her Majesty's pleasure had to earn their way out and the staff had to help them to do that. He clearly came away with the idea that there was a need for principles to govern the justice.
	We have just been taking the Children and Young Persons Bill through this House. I have been struck by the fact that the contributions to this debate so far are very similar to those on the other Bill, which concerns another group of people of the same age going not into custody but into care and preventing them getting involved in the criminal justice system. I could not help wondering why there was a disconnect, with similar people with similar needs being dealt with by different ministries and different Bills. Why is that? It seemed to me symptomatic of this monster Bill, which I can only describe as the "and another thing" Bill because it looks as though everyone has dumped their in-tray into it and added a mass of incoherent subjects. However, if there is one subject that has coherence, it seems to be youth justice.
	At the moment, I am also involved in helping a number of people to come up with ideas for an academy. It is an attempt to produce a new style of establishment for young offenders and young people where those who are homeless, those who are sentenced to community work and those sentenced to custody can come together on one site. There will be a custody element with something called a "foyer", of which there are 100 in the country, dealing with the homeless, and there will also be people from the community so that the young people can be given work, education and other treatment locally on site so that they do not have to go too far.
	Guiding this academy have been my former deputy—the person whom I mentioned earlier—and another former young offender establishment governor, who said that, before going any further, the principles of the establishment had to be clearly set out. To complement what the noble Baroness has proposed, I should like to read out the core principles that these two experienced people have come up with. They illustrate what is badly needed—coherence in the way that youth justice is administered at present and which is missing from too much in life. The core principles are:
	"The achievement of continuity of experience with family and friends, in education, work training and health care ... Connecting effectively with as wide a spectrum as possible of people, agencies and organisations in order to create positive developmental experiences for each young person ... Encouraging dignity and respect in relationships by valuing difference, cultural and spiritual interests and in creating space for self expression ... Offering differential responses and experiences that reflect age, maturity and developmental needs ... Provision of leadership that embraces education and personal challenges to reduce dysfunctional and delinquent behaviour, manages those synergies that most contribute towards fulfilling the purpose of the academy, generates and sustains a narrative of creative expectation and responsible practice, provides a resilient and continuous improvement culture in work and relationships".
	Added to the voice of experience and wisdom, which is behind the amendment, I think that the management of youth justice in this country would be better if these principles were clearly laid down for the people who are responsible for producing the legislation.

Lord Lucas: I entirely agree with what the noble Lord, Lord Ramsbotham, has just said and I feel immensely privileged to have heard it. It tackles the only part of the amendment that I have any trouble with, which is proposed new paragraph (b). Deprivation of liberty has a function—at least to the extent that my noble friend Lord Onslow and I experienced it in our youth. You need to manage the peer group of some of these young men. In particular, a lot of young men look to their peer group for socialisation and for a lot of what they get out of life. They value themselves according to the way that they are looked at by their peer group. If a person has got into the wrong peer group, you need to find some way of breaking that. To put them into a situation where their peer group can be managed is important. If that is to succeed, you then need a way to take that experience and translate it to the lives of these children.
	That is one of the main difficulties in having such a sharp divide between custody and life outside. They learn to survive inside; if it is a good place, they may well develop some good habits inside, but all their old mates and all their old ways are waiting for them when they get out. With something graduated, as the noble Lord, Lord Ramsbotham, has just described, there may be a real hope of using custody as a means of breaking a bad cycle with a child and then letting that child back out into their own community in such a way that they can take that learning with them. At least it is worth trying.
	It is wonderful to listen to these conversations, but I have great doubts about whether the Government have any real interest in rehabilitation. In the main prison estate, they are expanding numbers and cutting budgets. Where do they think those budget cuts fall? On security? No way. Prison governors are judged by whether people escape or not. The budget cuts are falling on education and time out of cell. Prisoners are spending more and more time in front of television. If daytime television is a way to learn better habits, I do not know what the Government wish us all to become.
	An emphasis on rehabilitation takes money, time and effort, which is not what the Government are giving the Prison Service. It would be wonderful to live in a world that is governed by the noble Baroness, Lady Stern, and the noble Lord, Lord Ramsbotham, but we do not have it at the moment.

The Earl of Listowel: It is a pleasure to listen to the noble Lord, Lord Lucas. He will be aware that the high level of churn in the youth justice system, meaning that children are kept a long way from where they are going to be resettled, makes it difficult to make that transition effectively. As the head of a teaching unit in a secure training centre said to me, "When these children leave here, it is as if they were walking off a cliff". There is no follow-through.
	May I ask three questions of the Minister? First, why is there this discrepancy between the practice of child custody in this country and that of our neighbours? Secondly, there have been a number of deaths of children in custody, but there has not been a single death of a child in a local authority secure unit—one of the small local units which have been discussed. If the amendment is redundant and the best interests of the child are already at the forefront of the Government's mind, why has their policy not been to expand in this area? Is not the Minister concerned that so many 16 and 17 year-olds are kept at 60 young people to a wing, with just three officers managing them?
	My final question relates to a recent conversation with a German forensic criminologist. I paraphrase, but he said: "We admire the research in the United Kingdom on outcomes for children". I hear this from many quarters. We know in great detail, in a way that continental countries do not, how poorly, I am afraid, our most vulnerable children often perform. He says that he uses the evidence in speaking to legislators and authorities in Germany. He says to them, "Look, the more you imprison people, the more they reoffend. If you use community sentences, they reoffend less". Is the Minister persuaded by the argument that an overheavy use of custody actually puts the public at more harm, as it encourages recidivism? These matters need to be thought through. I support the drive of the amendment and look forward to hearing the Minister's response.

Lord Kingsland: I rise to respond to the amendment so brilliantly introduced, as the noble Baroness, Lady Howe of Idlicote, said, by the noble Baroness, Lady Stern. I do not think that anyone in the Committee, least of all the Minister, would dissent from any of these three principles. As the noble Lord, Lord Elystan-Morgan, said, that the best interests of the child should be the paramount consideration has been part of our legislation since 1989. The idea that the,
	"arrest and deprivation of liberty of a child shall be used only as a measure of last resort and for the shortest possible time",
	has appeared in countless official reports and is a standard part of guidance to magistrates and judges. Proposed new paragraph (c) states that,
	"the child shall at all times be treated with humanity and respect for his or her inherent human dignity".
	Well, we are signed up to many international conventions that require us to follow this line.
	If this measure were to reach the statute book, its quality might be added to by a provision (d) that dealt with reoffending, a point emphasised by the noble Lord, Lord Judd. As my noble friend Lord Onslow said, we incarcerate more children than any other country in western Europe; he might have added that we do so less successfully than any other country in western Europe. At least 75 per cent of children in custody, as all your Lordships know, offend again.
	The question is what the real value would be of having such a set of principles on the face of a statute. We all know that these principles are, as principles, binding on the Government. The problem is that the principles are undermined by the details of our legislation on youth offending. The Government's great mistake has been to attempt to micromanage the judges. However well disposed a judge might be to the principles and however much he might wish to apply them to an individual in front of him, he is stuck with an obligation in an Act, a direction from the Lord Chief Justice or an obligation deriving from some other source to act contrary to the principles.
	If these principles are to bite, the amendment tabled by the noble Baroness, Lady Stern, will need more than she has put in it. It will need an extra provision that allows the judge to override the specific details of the statute by the principles if he or she considers them appropriate in the circumstances. As all your Lordships know, judges can, when considering evidential points in criminal trials, exclude evidence if its prejudicial effect on the trial will outweigh its probative value. If the noble Baroness, Lady Stern, added to her amendment a similar power that a judge could override a specific statutory provision which went contrary to these principles if he considered that the principles in this case were overriding, that might have some real effect in our system.
	Later we shall be dealing with the question of what happens if a youth rehabilitation order is breached. At present there is a certain flexibility that even if an order is breached three times within 12 months, a discretion can still be exercised by the court not to resentence. Often when someone is resentenced, he is sent to custody. What do the Government want to do now? They want to remove that discretion. If there have been three breaches in 12 months the judge is obliged to do it, and more children will end up in custody. Those principles, splendid though they are, will be of no help to the judge unless he can override the details of the legislation.
	I am not saying that if the noble Baroness were to introduce an amendment with that kind of force that I would necessarily support it.

The Earl of Onslow: Surely the solution to my noble friend's problem is for him and the noble Baroness, Lady Stern, to get together. The amendment could be withdrawn at this stage and they could jointly table an amendment on Report that would solve the problem that my ever observant noble friend has pointed out.

Lord Kingsland: I am always extremely tempted by the idea of getting together with the noble Baroness, Lady Stern, and I would certainly be delighted to talk to her about this amendment. But I was feeding her with a thought on which she might like to capitalise later. The issue is about the detail of the Bill. Courts need enough clear water to apply those principles properly and they do not have that. It is not just this Government; previous Governments have been similarly obsessive about refusing to let go of the detail. How can any legislation anticipate a set of circumstances that may confront a judge? That is why the courts need as much discretion as possible. That is true for sentencing generally, but above all it is true for youth sentencing.

Lord Hunt of Kings Heath: This has been a very interesting debate. I shall not intrude on the conversation between the noble Lord and the noble Baroness, Lady Stern, although no doubt we will see the outcome on Report.
	I welcome the opportunity given to us by the noble Baroness to debate the general principles. She has been ingenious in how she has done it, and it will be helpful to our later discussion. I must reiterate that the Government see custody as a last resort. The reasons in the Bill, particularly in the first part, are entirely consistent with that approach. We believe in rehabilitation—clearly that has to be an incredibly important part of what we seek to do in the youth criminal justice system.
	I understand the desire to set out principles at the front of the Bill. That is usually the desire of noble Lords for any Bill on which I have taken part. As it is now nearly 10 years since I first took a Bill through your Lordships' House, it is a debate that I have frequently witnessed. I did not agree with the line of argument of the noble Lord, Lord Kingsland, because I think that there will always be a balance in terms of discretion on sentencing. When we come to the breach question, we will discuss that further, where the Government consider that there needs to be some mandatory action to show people that there is a bite against breaches. However, the noble Lord pointed out one of the problems in putting a set of principles in the Bill without understanding what impact it might have on other legislation where principles are also set out. I know that that sounds like a rather techie detail, but it is an important consideration.
	The Government's view is that the principal aim of the youth justice system is set out in Section 37 of the Crime and Disorder Act. The Act imposes duties on anyone involved in youth justice to have regard to that aim. There are issues about how the set of principles proposed by the noble Baroness would fit with that, and with Clause 9, which says that the principal aim of sentencing is the prevention of offending. I have no difficulty whatever in defending that as the rightful aim. We will debate later the question of the best interest of the child. That is clearly vital. There can be no question about that, but there are other factors to be taken into account, such as the interests of victims and the public—not in the pejorative sense, as was used in what was described earlier as media frenzy, but a reasonable view of the public.
	I fully understand the concerns about the number of young people in custody. We have also heard from the Committee concerns about particular aspects of experience within custody. I respect those views.

The Earl of Onslow: Will the Minister find out—because I am sure that he will not have the answer now—the difference in reconviction rates between children in Finland, where the locking-up rate is 0.02 per 100,000, and the United Kingdom, where the rate is 23 per 100,000? That would surely tell us something. It would be a guide as to where we can get some information.

Lord Hunt of Kings Heath: I do not have that information, and I would always caution noble Lords against too simplistic comparisons between different countries. In the end, we have to decide our own destiny, taking account of the experience of other countries. I am very happy to go away to see what information I can find and will be happy to circulate it to noble Lords who have taken part in the debate and put it in the Library of the House, if the noble Earl would like me to do so.

The Earl of Onslow: I accept that one is not comparing complete like with complete like, but I do not think that one is comparing apples with pears. It would tell us if we are doing it wrong, which, to my way of thinking, with 23 per 100,000 locked up as opposed to 0.02 per 100,000, we probably are.

Lord Hunt of Kings Heath: I accept the noble Earl's point. It is difficult to make direct comparisons, but I will see what we can do. I also said that we are concerned about the number of young people in custody. We recognise that there need to be changes. That is what the first part of the Bill is about. We also recognise that we have to do more for those young people who find themselves in custody. There is no argument about that at all. However, we cannot ignore the need to address the concerns of victims and the wider general public to provide assurance that effective action is being taken to prevent and reduce offending by young people. The contrast between debates in your Lordships' House and in another place is interesting. We have to take note of the views of elected Members in many regards, but I reiterate that we see custody as the last resort for young people. It is a requirement that sentencers must already ensure that where custody is imposed it is of the shortest length necessary and commensurate with the seriousness of the offence. I say to the noble Lord, Lord Kingsland, that we hope that gives discretion to sentencers. None the less, in their capacity, they have passed those custodial sentences.
	Of course, any child in the youth justice system should be treated with humanity and respect. That is their fundamental human right and it is already enshrined in human rights legislation. Nobody who was a Minister in my department could wish otherwise for the people who are, in a sense, in our care.
	I know that we will debate the question of human rights, the United Nations and whether this country meets the requirements of that charter. The fact is that we think we are consistent with it. We believe that the requirement to use custody as a last resort ensures that the court must not pass a custodial sentence unless the offence or offences are so serious that neither a fine nor a community sentence can be justified.

Lord Elystan-Morgan: I am most grateful to the Minister. I am sure he will accept that, some 25 years ago—it may be longer; I cannot remember the exact date—this House passed a criminal justice Bill that ordained, among other things, that imprisonment should never be used save in circumstances where a court certified to the effect that the offence was so serious that no other form of disposal would be justifiable in the circumstances. I think that those are the exact words, though they might not be as it is some years since I retired. As that is the case for imprisonment generally, I have two questions. Is that a thousand miles away from what is proposed in paragraph (b) of the amendment? If it is, would the Government be prepared to insert the general words of the statute to which I referred to apply now to children and young persons as well?

Lord Hunt of Kings Heath: The noble Lord has a remarkable memory, as I am discovering. His contributions are always apt. But I think that the answer must be no, because we consider that the current legislative provisions already meet the case in point. As I said earlier, there is a genuine problem about simply enunciating principles in the Bill, however attractive, because of the implications they could have for other legislation.
	A number of noble Lords, including the noble Lord, Lord Ramsbotham, raised the question—I am sure we will return to it later—of what the noble Lord described as the "disconnect" between criminal justice legislation and legislation relating to children and young people that often refers to the responsibility of local authorities. I fully understand the issue. There is no question but that the child's welfare should be the court's paramount consideration. Nor can there be any doubt that certain bodies should have regard to the need to safeguard and promote the welfare of children. That is provided for, for instance, in the Children Act 2004. However, the Children Acts were not intended to apply to a criminal court when sentencing a young offender, because we believe that the court also has other considerations such as the protection of the public. That is why we believe that the prevention of offending has to remain the principal aim of the court when sentencing a young person. However, courts do and should continue to have regard to the welfare of a young person, which is where the 1933 Act is so important.
	When a court is sentencing a young offender, it never has, and in our view it should not give, the welfare of the child priority over the prevention of offending.

Lord Mayhew of Twysden: How does what the Minister just said about the welfare of the child remaining the paramount consideration chime with the passage in new subsection (4) in Clause 9 on the purposes of sentencing? Those are:
	"(a) the punishment of offenders,
	(b) the reform and rehabilitation of offenders,
	(c) the protection of the public, and
	(d) the making of reparation by offenders to persons affected by their offences".
	If what the Minister said is really the Government's intention, should there not be some amendment of that list to incorporate reference to the welfare and well-being of the child?

Lord Hunt of Kings Heath: I do not think so because other legislation relates to that point. I have already referred to the Children and Young Persons Act 1933, which deals with the welfare of the child. It is difficult to put a set of principles in the Bill when other pieces of legislation relate to the overall points I have made. I know that this is complicated, and it is sometimes frustrating that not everything is in one place in the legislation. That is probably the very point that the noble Baroness, Lady Stern, seeks to make. New subsection (2) in Clause 9 states:
	"The court must have regard primarily to the principal aim of the youth justice system, that is, to prevent offending".
	In addition, new subsection (3)(b) in Clause 9 refers to the Children and Young Persons Act 1933, which takes into account the welfare of the child.
	Much of the debate has concerned what action the Government have taken to improve the welfare of the child—which is important—to prevent reoffending and to help with rehabilitation. I believe that the Government deserve credit for the changes that have been made in the past 10 years. We have introduced the Youth Justice Board, which has given a separate focus to youth justice matters, as well as local youth offending teams. Since noble Lords are always happy to quote organisations' criticisms of our efforts, it is worth noting that the Audit Commission described youth offending teams as,
	"a good example of a flexible, multi-disciplinary approach to service delivery from which other public sector partnerships could learn".
	I pay tribute to them.
	The Youth Justice Board has delivered significant achievements; it has improved victim and community involvement and introduced new programmes to support interventions and court orders such as the intensive surveillance and supervision programme. I think that that is part of what the noble Lord, Lord Lucas, wanted in relation to the young men he referred to. We have reduced delays from arrest to sentence for persistent young offenders. Again, that is a very important early intervention, which tries to stop offenders from going down the wrong path. We have seen, in the 1998 Act, the introduction of parenting orders which acknowledge the key role played by the family in the development of young people.
	Of course we need to do more, and surely the purpose behind the range of court penalties introduced by the youth conditional caution is an example of doing so. We are also seeking to extend the use of youth referral orders by allowing one to be made on a second conviction when the young person concerned pleads guilty and has not had a referral order before. We see that as a very effective community sentence.
	The noble Lord, Lord Hylton, is right to emphasise the importance of restorative justice. I am a committed supporter of restorative justice, particularly for young people. Restorative justice and reparation is a thread running through the youth rehabilitation orders and can be included in the programme's activity requirement as unpaid work. The reparation order will remain a separate sentence beneath the youth rehabilitation order. We will also be piloting a new out-of-court disposal—a youth restorative disposal which will also be below the YRO but allow a young person to apologise for committing an offence and to take responsibility for their actions.
	We will debate in detail the construct of youth rehabilitation orders. There is no doubt that preventing offending in the first place is the best way of tackling youth offending. Preventing young people entering the criminal justice system has to be the cornerstone of the Government's youth crime strategy. The noble Baroness, Lady Stern, asked me about the joint responsibility between my department and the Department for Children, Schools and Families—a very helpful development in government responsibilities. We are still at the early stages of making it work effectively but I have no doubt that it is a very important change. I hope it leads to ensuring that children's services generally are co-ordinated and that the youth justice system works much more effectively.
	Many noble Lords are interested in the issue of restraint in juvenile settings, a matter we debated some months ago when I brought the statutory instrument to your Lordships' House. As noble Lords will know, an independent joint review is being undertaken and we have to await the outcome. The age at which young people can be brought into court later is an issue we will discuss later. We will discuss the whole question of thresholds, and I welcome that.
	As I listened to noble Lords' comments, I found myself in agreement with the philosophy and sentiments they expressed. We are concerned about the number of young people currently in custody. When young people are in custody, we want to ensure that the emphasis is very much on the prevention of reoffending and on rehabilitation. We have seen improvements in some of the educational programmes, but we need to do more. We have to ensure that when a young person leaves a custodial setting there is proper liaison and integration with services back in the community. That is why the link with the Department for Children is so important. At the same time, we believe that we have got the principles of the system right, with the emphasis on reoffending. I have no doubt that we will come back to this as we go through the Bill, and at a later stage. At this stage, I thank noble Lords for a very helpful debate.

Baroness Stern: I thank all those who have contributed to the debate for their kind remarks, and the Minister for his very helpful reply. Listening to the debate reminded me yet again what a privilege it is to be a Member of your Lordships' House. I think that reading it will encourage those, such as those who work for youth offending teams, who work in this field. Many of them are, I know, yearning for a clear ethical statement and some aspirations for the children whom they are trying to help. They know, as the noble Lord, Lord Judd, reminded us, that the long-term protection of the public depends on successful rehabilitation.
	I am grateful to the noble Lord, Lord Kingsland, for pointing out that if these principles are to be effective, we need to liberate the judiciary to use its discretion and its wisdom in accordance with those principles. He is of course absolutely right. I have been listening to him in this House for many years now, and it seems to me that he is always right. I feel that I have been encouraged to have some further tête-à-têtes on this so that I can consider how to take it forward. On that basis, and for now, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1 [Youth rehabilitation orders]:

Lord Kingsland: moved Amendment No. 2:
	Clause 1, page 2, line 17, at end insert—
	"( ) a reparation requirement (see paragraph 24A of that Schedule),"

Lord Kingsland: In moving Amendment No. 2, I shall also speak to Amendments Nos. 22 and 64.
	It is quite clear to all Members of the Committee that the philosophy that lies behind the youth rehabilitation order is to establish a generic order. The Joint Committee on Human Rights welcomed in principle the idea of a generic community sentence, which, it says,
	"has the potential to enhance the legal protection for the human rights of children and young people in the criminal justice system".
	The youth rehabilitation order encompasses lots of previous low, medium and high-effect orders in a single unit. I am therefore perplexed by the Government's decision to keep reparation orders out of this hierarchy. The Government's argument behind the generic principle is that, for example, intensive supervision and surveillance orders should be part of a single generic order, and that there is an inbuilt hierarchy in the generic youth rehabilitation orders. Therefore, why do they want to keep the reparation order separate? If we are to move towards a generic philosophy, it is vital that it is all encompassing.
	The right honourable Mr Hanson, the Minister in another place, said:
	"We are trying to ensure that we have the flexibility of having the reparation order in place for low-level offences and, equally, including it as part of a wider youth rehabilitation order if need be. It is important that we do that to prevent reoffending".—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 23/10/07; col. 215.]
	But the menu of options set out in the Government's list contains many low-level interventions that magistrates can use, and it is not clear how one can distinguish a hierarchy of measures, such as a limited attendance centre requirement or a limited activity requirement, and a reparation order. That is particularly true if the Government's position is that intensive supervision and surveillance orders fall within generic youth rehabilitation orders. By implication, if I understand the Government aright, there is a hierarchy starting at the bottom and moving right up the scale to intensive supervision and surveillance orders. Surely it makes sense to have all the options available in a clear and methodical manner.
	The points raised by the other two amendments are slightly different. They concern restorative justice, and I am sorry that the noble Lord, Lord Hylton, is not in his place—he has left the Chamber just at the crucial moment. One thing we know about restorative justice, or at least what we know from the experience we have had with it so far, is that it has been successful. The intervention works in what are often surprising ways. For example, it works not just for property crime, which is what people normally think of with restorative justice, but it also works for some sorts of violent crime. Moreover, it is capable on many occasions of helping the victim who has been the subject of a crime. My concern is that in practice some of the reparation orders do not go as far as they should, which is properly to address the issues of the offence with the victim. Quite often it simply means that there is an obligation on the offender to write a letter to the victim and do no more. That is the purpose behind the provision in Amendment No. 22 of a definition of what the reparation requirement should be.
	Amendment No. 64, which is an amendment to Schedule 1, defines the reparation requirement in relation to a youth rehabilitation order as meaning,
	"a requirement that during the period for which the order remains in force, the offender must attend an activity or activities involving contact between an offender and persons affected by offences in respect of which the order was made and as may be determined by the responsible officer".
	I beg to move.

Lord Bach: I am grateful to the noble Lord, Lord Kingsland, for outlining his amendments so clearly. I shall deal first with Amendment No. 2, which follows closely an amendment debated in Committee in another place. We believe that adequate provision is already made in the Bill and in existing law for reparation by the offender. It is our view and, I think, will be that of the Committee generally, that young people who have offended should accept responsibility for their actions. As part of this, where possible and depending on the nature and circumstances of the offence, the offender should be required to do something practical in reparation that will benefit the victim or alternatively the community as a whole. Offenders can be required to do things such as cleaning up graffiti, repairing community facilities or conservation work.
	Making reparation to the victim of a crime is a central part of the youth justice system because it can assist with the rehabilitation of the offender and help the victim. That is precisely why we have made provision for reparation in the requirements of the youth rehabilitation order. Paragraph 8(2) of Schedule 1 to the Bill provides that as part of an activity requirement, a specified activity,
	"may consist of an activity ... whose purpose is that of reparation, such as an activity involving contact between an offender and persons affected",
	by the crime. Indeed, the Committee will have noticed the similarity between the words in paragraph 8(2) of Schedule 1 and the amendments tabled by the noble Lord, Lord Kingsland.
	But what of the suggestion that reparation cannot be made available with other requirements? First, an activity requirement will always form part of the youth rehabilitation order, with intensive supervision and surveillance. It could feature as part of a programme requirement or, in the broader sense, take the form of an unpaid work requirement. Secondly, if reparation was wanted in addition to some other requirement, the court could impose an activity requirement the sole purpose of which is reparation.
	Let me explain why we propose to retain the reparation order as a separate sentence beneath the youth rehabilitation order. It is to give the courts flexibility so that they do not have to resort to a youth rehabilitation order simply to ensure that reparation is made. During oral evidence to the Public Bill Committee in the other place, both the Youth Justice Board and the Children's Society strongly supported retaining the reparation order as a separate sentence. The chief executive of the Youth Justice Board told the committee that,
	"there is value in having reparation in its own right".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 18/10/07; col. 109.]
	A reparation order provides a separate sentence below the youth rehabilitation order in the sentencing hierarchy. Like reparation as part of a youth rehabilitation order, it is designed to reinforce personal responsibility and learning about the consequences of the damage the offender has caused to the individual and the community. We believe that the reparation order can be effective in preventing the escalation of offending behaviour before there is a need for the court to consider a youth rehabilitation order and, as such, should be retained as a free-standing disposal in its own right. I remind the Committee of what I am sure it knows well, that it can typically be combined with a fine.
	As the amendments are drafted, the new reparation requirement would duplicate the provisions for reparation already built into the youth rehabilitation order, and I have referred to the part of Schedule 1 in which this appears. The amendments are not necessary in our view and do not go as far as the provisions already in the Bill. They risk causing some confusion to the courts, to the supervising authorities and, crucially, to the young person who is to be sentenced. For those reasons, I invite the noble Lord to withdraw the amendment.
	On the noble Lord's other amendments, reparation is a form of restorative justice. The youth rehabilitation order includes provision for reparation and therefore covers those amendments.

Baroness Carnegy of Lour: From the way in which the Minister has spoken, it sounds as though the reparation order can be made without the person being found guilty of an offence. Is that right?

Lord Bach: No. I am sorry if I gave that impression. Of course not; a reparation order is a part of the sentence of the court, as I understand it, for someone who has been convicted or pleaded guilty to a criminal offence. It cannot be imposed just because the court feels like it.

Baroness Carnegy of Lour: I asked that question because there is a basic weakness in the whole concept of the orders in the Bill. To be found guilty of an offence very often makes the child more likely to reoffend, not less likely. We all know what children are like and, if they are found guilty, very often they come back and do it again. That is our experience of children and a lasting experience in the criminal justice system.
	Many years ago I was on the visiting committee of a borstal. Borstals had very high aims and did a lot of very good youth work while people were in them, but the reoffending rate was enormous; only 11 per cent at that time did not reoffend. It simply did not work. I learnt at that time that to be found guilty does not necessarily make you less likely to offend again.
	The menu of possibilities that the court may impose under the Bill contains many measures that one would hope might be taken regarding a child without them being found guilty of an offence—but in this context they are guilty of an offence. There is a basic problem in how to meet the Government's aspirations through the order. The reparation motion is excellent and works better than most things, but again it applies only because you are guilty of an offence and you have to do it.
	In thinking about all this, we have to realise that unless we can find a way of getting children to do some of these things without being found guilty of an offence, we will not get terribly far. I would have liked to have said that in the previous debate but I had to go to a meeting and knew I could not be in the Chamber for the whole thing, so I did not speak. We have a basic weakness in our thinking in England and Wales about this issue.

Lord Bach: I will come back to the noble Baroness. I am glad she made her intervention. She asked about reparation orders under Clause 1. As always, in my experience, she has a point. Youth conditional cautions are provided for in the Bill, and they are part of a pre-court disposal. In effect, as I understand it, the offender has admitted the offence and the discretion is used not to bring him or her before a court but to caution them. As part of the youth conditional caution, and this should please the noble Baroness to some extent, there can be an element of reparation or restorative justice. I hope that clarifies the issue. I have been addressing the amendment in the name of the noble Lord, Lord Kingsland, about reparation in the context of the Bill.

Baroness Linklater of Butterstone: I have great sympathy with the amendment. I read from around the House that there is a lot of support for both reparation and what the discussion has then slipped into, which is restorative justice. In order to retain clarity, it is important to realise that there is a real distinction between reparation and restorative practices, not least when, as happens quite often, victims are not at all keen on meeting the person who has offended against them. Restorative conferences require a great deal of work to be done with both the victim and the offender. I have had the good luck to be able to sit in on one or two restorative conferences and they are extraordinarily interesting and helpful, but they are not necessarily applicable in all cases. A lot of work has to be done. They are part of a continuum but they are definitely distinct and separate. I understand the Government's position on keeping reparation separate because it has a role, but it is none the less part of a continuum of possibilities that should be available to the courts. There should be no confusion between the two.

Lord Kingsland: I thank the Minister for his reply. He suggested that one of the influences on the Government in taking this step was advice that had been proffered from outside. However, the Government will have had advice also from the magistrates, who have suggested that it would have been much better if reparation had been expressly included in Clause 1(1), as I have argued.
	The Minister, like the right honourable Mr Hanson in another place, placed great emphasis on the reparation order being a low-level intervention. However, there are many other low-level interventions which are an inherent part of Clause 1(1). One can think, for example, of a limited attendance centre requirement or a limited activity requirement, which are just as low-level as a reparation requirement. What distinguishes them from the reparation requirement? What makes it appropriate for them to be incorporated, in circumstances where the reparation requirement is not?
	I was dismayed by the Minister's response, but, at this stage of the Bill, I do not intend to bring the matter to issue and, therefore, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Lord Kingsland: had given notice of his intention to move Amendment No. 3:
	Clause 1, page 2, line 17, at end insert—
	"( ) an alcohol treatment requirement (see paragraph 24B of that Schedule),"

Lord Kingsland: The amendment is grouped with Amendments Nos. 23 and 63. Your Lordships may have observed that we will come in a little while to similar amendments tabled by the noble Lord, Lord Avebury, which I have studied carefully and concluded are better drafted than mine—as I have frequently done in the past. In those circumstances, I shall speak to the matter as a humble hewer of wood and drawer of water when the noble Lord, Lord Avebury, introduces his own amendments in a little while.

[Amendment No. 3 not moved.]

Lord Kingsland: moved Amendment No. 4:
	Clause 1, page 2, line 28, leave out "or (b)"

Lord Kingsland: The amendment raises intensive fostering, which is not to be confused with the normal fostering obligations that lie on a local authority for general welfare purposes. The evidence we have so far suggests that intensive fostering has great potential to keep a child out of custody, but does that only when it is properly implemented. The Government have pilot projects in, I think, three counties, the results of which are being analysed by the University of York. So far, the results are extremely encouraging. The real issue is the cost, because although intensive fostering is potentially very successful, it is extremely resource-consuming and therefore very expensive. What is more, the expense falls not on the criminal justice system and its budget, but on the local authority in the area where the child is located.
	When this matter was debated in another place the Minister, Mr Hanson, suggested that local authorities would have to bear no less than, on average, some £500,000 per county. Where is this money going to come from? Will it be diverted from the criminal justice system or will the resources devoted to other community orders be stretched further? It appears that a court cannot impose a fostering requirement without consulting the local authority, so there will be a financial incentive for the local authority to say that they are not in a position to provide intensive fostering facilities. The consequence might well be that the child will end up in custody.
	So a financial issue is at the heart of this potentially extremely successful arm of youth justice. I expect that between the stages of the Bill in another place and now the Government have not advanced very much in their thinking about how they will finance this, but they must surely see the dilemma here; clearly some local authorities, either because they are relatively wealthy or because they really believe in intensive fostering, are more likely than not to provide facilities and other counties will not. You might end up with a kind of postcode regime for this measure. In our submission, it would be a very great shame if that were to be its fate.
	Through the amendment I am urging the Government in approaching this issue to think a little more carefully and imaginatively than they have felt themselves capable of so far. I beg to move.

Lord Ramsbotham: I support the amendment and give notice of something that is already happening in this area, organised by Community Service Volunteers in Sunderland. This is a proposal called the VYOI—the Virtual Young Offenders Institute—which has been funded by the Treasury to the tune of £3 million for three years; this is the third year. It entails young offenders whose criminality is not deemed so great being given the opportunity of living with and being intensively fostered by a foster parent appointed by Community Service Volunteers. The offenders are given employment and education and they are helped into accommodation when their period is over. Of course, if they fail in any way to come up to the terms of the scheme, they are sent back to custody.
	The interesting thing about this experiment was that it took an enormously long time for Community Service Volunteers, having got funding from the Treasury, and supported in its appeal for it by the then chief executive of NOMS, to persuade the Probation Service and others to release these young offenders into intensive fostering, because they claimed that the offenders were their responsibility. What is happening now is that the work is in progress, overseen by the regional offender manager in the north-east, and an evaluation of this project, funded by the Helen Hamlyn Trust, is being carried out by Newcastle University. Here I declare an interest, because I am an adviser to the Helen Hamlyn Trust and suggested that it should fund this evaluation. It would be worth the Minister monitoring this, because it is something practical that has potential and there are evaluated results that can be taken into account.

Baroness Linklater of Butterstone: I, too, support this amendment. If the evidence is there, as it seems to be on a small scale, the argument can be made that the extremely high costs referred to by the noble Lord, Lord Kingsland, could be justified in the long term. However, the noble Lord, Lord Kingsland, also makes the point that I made in our earlier debate; namely, that unless the facilities are available for a particular disposal to be carried out, it is pointless to make this disposal. This is one of the only instances in the Bill where it has to be established before a disposal is made that intensive fostering facilities are available. I urge the Government to reassure us constantly that if a decision is made on a community-based penalty, both the resources and the facilities will be there.

Lord Bach: I thank noble Lords and in particular the noble Lord, Lord Kingsland, for raising this issue. It gives me the chance to say a few words about this scheme. I am also grateful to the noble Lord, Lord Ramsbotham, for telling us about the Sunderland scheme. My noble friend has already said that he will monitor it and we look forward to hearing more.
	The scheme is based on the Youth Justice Board's intensive fostering pilot, which offers an innovative alternative to custody. Let me repeat—this is an alternative to custody and is pitched at this level as a reflection of its intensity. The fostering requirement retains its place as an alternative to custody alongside intensive supervision and surveillance. The Committee will know that intensive fostering is significantly different to standard fostering arrangements, which are a matter for local authorities to decide as a welfare issue. Intensive fostering works on an evidence-based model, delivered by a team who work directly with the young person and, critically, with their family of origin. I repeat that it is an alternative to custody, for use where the juvenile's offending is directly linked to their home environment. It is designed to provide highly intensive care for the offender for up to 12 months, as well as a programme of support for the family. This structured intensive fostering programme of daily activity is clearly distinguished from standard foster placements, and its intensity underlines its position at the custody threshold.
	The Youth Justice Board emphasised the value of intensive fostering in its evidence to the Commons Committee, stating:
	"It is also welcome that the YRO will include a fostering requirement as another clear alternative to custody allowing for use of the Intensive Fostering programme currently being piloted by the Youth Justice Board ... Intensive fostering is being piloted on a small scale as an alternative to custody in cases where a young person's offending is directly linked to his or her home environment".
	Those places where it is being trialled are Stafford, Wessex—which is Hampshire and the Isle of Wight—and parts of east London. The programme is designed to provide highly intensive care for the child or young person for up to 12 months, as well as a programme of support for the wider family. This structured intensive fostering programme of daily activity is clearly distinguishable from ordinary fostering. Currently the programme is available on a small scale—so far 35 young people have taken part. The pilot is due to end in October 2008. As the noble Lord, Lord Kingsland, suggested in moving his amendment, while evaluation of the scheme is not complete, initial indications are positive, although we have to put in the caveat that only a small number of people have been through it.
	The noble Lord properly raises the issue of money and resources. The first thing to say is that we do not think that this scheme will involve a large number of children, even when it is up and running. It is a vital tool in the kit of those who, like this Committee, want to keep young people out of custody. But we do not think it will be widely used and, as far as resources are concerned, let me quote from Mr Les Lawrence, the chairman of the children and young persons panel from the Local Government Association, who gave evidence to the Public Bill Committee on 18 October 2007. He said:
	"The early indication is that the number of places and the resources, working with the court and the other agencies, are sufficient at this point, as is the number of places that are required to match the number of available resources. Yes, there is support from local authorities, because of the other services that need to go with the fostering service, but thus far, albeit from early indications from that pilot, it seems that the resources—if used in an aligned and the proper way—are sufficient at present".—[Official Report, Commons, Criminal Justice and Immigration Bill Committee, 18/10/07; col. 141.]
	So far, so good. The noble Lord is quite right, when considering a programme that I think will have the universal support of Members of the Committee, to ask how it will develop in future. He can rest assured that this scheme will not fail through lack of resources. Let us see how the pilot projects do and let us hope that we can move this programme forward as fast as possible.

Lord Kingsland: I am grateful to the Minister, and rather intrigued by his last remark that the scheme will not fail through lack of resources. Is there a glimmer of hope that, where a local authority consistently refuses to provide resources for intensive fostering in its area, it might either be leant on or assisted by the criminal justice regime? Is it fair to say that the Government are considering this at the moment? I am not sure whether the Minister is inclined to respond.

Lord Bach: Of course I will answer the noble Lord. I admire very much his pressing me so politely. I think the most important word he used in setting out the options was "leaning"—I will leave it at that.

Lord Kingsland: Taking a child away from its family is a very serious matter. Everybody here is aware that this is—perhaps "draconian" is the wrong word, but it is a far-reaching arrow in the quiver of possibilities. Nevertheless, in certain circumstances, it can have extremely beneficial effects. Therefore, we applaud the Government's pilot projects and hope that, if the initial findings are verified with larger samples, resources will not prove to be a barrier to ultimate success. In those circumstances, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Clause 1 agreed to.

The Earl of Onslow: moved Amendment No. 5:
	After Clause 1, insert the following new Clause—
	"Custody of children: conditions to be met
	A court must not pass a custodial sentence unless—
	(a) the offender has already been the subject of a youth rehabilitation order, or orders, which falls within section 1(3), or(b) the offence, or the combination of the offence and one or more offences associated with it, was so serious that, notwithstanding the age of the offender, a youth rehabilitation order which falls within section 1(3) cannot be justified for the offence."

The Earl of Onslow: We now arrive at the question of custody thresholds. I am moving this amendment because I have the privilege to be on the Joint Committee on Human Rights. The noble Baroness, Lady Stern, and I have been on it longer than some of the other noble Lords. I am pleased to see that the noble Lord, Lord Judd, who used to be a pillar of the committee, has put his name to the amendment, and I speak with the background of the JCHR brief. Your Lordships will know that it is not exactly a committee packed with Conservatives. Basically, it consists of people who seem to be interested in, and are keen to protect, the rights of the subject. Some of us come to it from an old-fashioned, right-wing view that the Magna Carta, the Bill of Rights and all those lovely historical liberties of the subject should be upheld at all costs; others come to it from a slightly more left-wing, human rights angle and the Tom Paine tradition. However, on this issue we are unanimous.
	I shall quote from a particularly interesting part of our report. The UN Committee on the Rights of the Child came over here to see how we were doing and issued a report in 2002, which said that it was,
	"deeply concerned at the ... increasing numbers of children in custody, at earlier ages for lesser offences, and for longer custodial sentence imposed by the recent increased court powers to give detention and training orders. Therefore, it is the concern of the Committee that deprivation of liberty is not being used only as a measure of last resort and for the shortest appropriate period of time, in violation"—
	I repeat, "in violation"—
	"of Article 37(b)".
	I underline the fact that this was in 2002 because in 2003 approximately 1,400 children under the age of 18 were in custody in England and Wales. That number more than doubled over five years, with a 110 per cent increase, from 1,405 in 2002 to 3,000. The number of children under the age of 15 in custody has increased even more dramatically—by 700 per cent, as I explained earlier—from 100 to more than 800, with only 50 being serious cases. That increase has been driven by government legislation and the sentencing climate. Over the same period, indictable offences have dropped by 20 per cent, and that is no artificial change. The rates have been stable since 1995 and 42 per cent fewer people report being crime victims. I also said earlier that the figures for this country were 23 per 100,000 and, for the Finns, 0.02. Just for fun, I shall put France down as six and Spain at two. That shows that something has gone wrong in the use of custody thresholds and we think that that needs to be addressed seriously.
	Everyone agrees that children can be very unpleasant on occasion, and we have recently read in the newspapers of sentences for children who behave in a very repellent manner, but it is more important than anything else to get at those children. One does not defend the public by getting at those children, but one does defend the public and act for the good of public safety by ensuring that proper rehabilitation of the disgusting, as well as of the less disgusting, is carried out. I think we are all saying that the use of custody is just not working and, if it does not work, that is immoral. Therefore, we should ensure that everything else is tried before custody is used and that should be in the Bill. I beg to move.

Lord Judd: I am delighted to support the noble Earl in his amendment. I thought that he moved it in a characteristically reflective style, which is always very enjoyable to hear. He referred in passing to left-wing advocates. I served on the committee with the noble Earl for some time and often felt that he was essentially, in the best sense, a left-wing advocate of decency, humanity and common sense. However, that is not why I rise to support the amendment, although I am glad to do so in that spirit. He referred to the UN Committee on the Rights of the Child, but when the human rights commissioner from the Council of Europe visited this country, he had an informal meeting with the members of the committee and was really perturbed by what he detected—I think it may be fair to say that he thought it was inadvertent—as the increasing criminalisation of young people in our society. That conversation with the commissioner made a deep impression on me, and that is one reason why I think the amendment should be taken seriously.
	The second reason is that, with the help of the Home Office—I always believe in looking at things as they are—I visited one of the teams working on the front line in this sphere. I do not think that I am doing them a disfavour if I say that I was terribly impressed by their unhappiness about the way the system was operating; they were quite perturbed about it. I think that it is something that needs to be addressed and, for those reasons, I hope that my noble friend, who is a reasonable man, will respond to the amendment reasonably and sensitively.

Baroness Stern: I, too, am a member of the Joint Committee on Human Rights and, as will be clear, I am in very good company. I very much support the remarks of the noble Earl, Lord Onslow, and the noble Lord, Lord Judd. I am also a Member of your Lordships' House who remembers very well Lady Faithfull—a Conservative Peer of immense achievements.

Lord Graham of Edmonton: Lucy. She was a good girl.

Baroness Stern: Indeed, she was a good girl. She had been a social worker and a children's officer, and she used her time in this House to enormous effect in bettering the lot of disadvantaged children—particularly those in trouble. In this House, she introduced an amendment which became Section 1(4) of the Criminal Justice Act 1982 and which set a custody threshold for people under 21 before it was repealed by Section 101(2) and Schedule 13 of the Criminal Justice Act 1991. Her Section 1(4) provided that the courts should not pass a sentence of custody on a person under 21 unless they were,
	"of the opinion that no other method of dealing with him is appropriate because it appears to the Court that he is unable or unwilling to respond to non-custodial penalties or because a custodial sentence is necessary for the protection of the public or because the offence was so serious that a non-custodial sentence cannot be justified".
	The measure had a significant effect on the number of young people sent to custody. Between 1982 and 1990, there was a 54 per cent reduction in the use of immediate custody for indictable offences for people under 21. The clause was opposed by the then Conservative Government and was achieved only after a considerable amount of persuasion by Baroness Faithfull, which she was extremely good at. The Government subsequently admitted, however, that she had been proved right by events. There are sound human rights arguments for reserving custody for children to the inescapable minimum, for trying all other measures first and for imposing a high seriousness threshold. I cannot believe that that is what we are doing at the moment.
	Liam McManus, who was 15 years old, killed himself in Lancaster Farms Young Offender Institution while serving six weeks' custody for breaching his supervision order. I know a family where a child with learning difficulties was sent to Huntercombe Young Offender Institution on his sixteenth birthday for three months for not keeping his appointments with his supervisor in the youth offending team. The arguments I heard for why he did not keep his appointments were certainly worthy of examination.
	We have the latest custody figures from the Ministry of Justice, from December 2007. They show that 387 of the 1,781 sentenced children aged 15 to 17 received a sentence of six months or less. Such a sentence cannot have been imposed for public protection reasons or for seriousness, so why was it imposed? Of the 1,781, 143 were imprisoned for theft and handling, 79 for drug offences, 35 for motor vehicle offences and 216 for other non-violent offences. I therefore find the Government's position a little hard to understand. They frequently say—the Minister said it again today—that they want custody used as a last resort. I have no doubt that he is absolutely sincere or that that is what he wants.
	The Youth Justice Board has a target to reduce the use of custody by 10 per cent—not that the Youth Justice Board can reduce the use of custody. Presumably it means that it requires the youth offending team workers to try much harder to put good ideas for non-custodial options to the courts and to persuade them of the merits of such a course. If the Youth Justice Board has such an objective, surely the Government support it? Custody is very expensive. It is very damaging to a child's prospects. As the noble Baroness, Lady Carnegy, said, even an admission of guilt and a conviction is very damaging to a child's prospects. The research from the University of Edinburgh child cohort study makes it clear that the most likely predictor of future involvement in crime is an initial involvement in the criminal justice system. Most other countries in Europe manage not to use custody as we do. The Government may like to take particular note of the view of the Local Government Association, which we have just heard quoted on this matter. It has written to many of us urging our support for an amendment such as this one. It says:
	"We do hear of horrific acts of violence perpetrated by young people, and for young people who commit such offences a custodial sentence must, of course, remain an option. However, there are a great many young people drawn into the youth justice system who do not represent a serious risk to the physical or mental health of others and are actually vulnerable themselves. We must respond to those young people as children first, seeking to address their welfare needs whilst seeing that justice is done—but does not jeopardise the child's future, long-term health and well-being".
	This is the crux of its argument:
	"We are convinced that a failure to take such an approach will ultimately be borne by the local community."
	The Local Government Association is making the point that local communities will have to bear the consequences of this policy. Young people who are sent to prison for six months for non-violent offences will come back, but their prospects will be worse. They will cost their local community a lot. They may well cause a great deal of damage. Those are very strong practical reasons which I hope the Government will consider when looking at these amendments.

Lord Judd: Does the noble Baroness agree that her last remarks endorse the observations that were made to me by the team that was working on ASBOs, who were exasperated because those factors were exactly what was making the situation worse? Does she also agree that an underlying element of anxiety about legislation is that, whatever the good intentions of Ministers, those good intentions are not being delivered in practice? From that standpoint, does it not become necessary to spell out in simple language what is required to turn these commitments into reality?

Baroness Stern: As ever, I agree completely with the noble Lord.

Baroness Linklater of Butterstone: I wholeheartedly support Amendment No. 5 and agree with the points just raised by the noble Lord, Lord Judd. I shall also to Amendment No. 6, which stands in my name and that of my noble friend Lady Falkner.
	It is a sad reflection on the reality of our management of children who are currently in trouble and offending that these amendments are necessary at all. The amendments are designed to ensure that custody is used only as a last resort for children—when in theory, of course, there is already a requirement that it be the last resort for offenders of all ages except the most dangerous and prolific. We know that that is not the case for adults. Shockingly, it is not true in the case of children either. In the past 10 years, children have increasingly been sent to custody not only for lesser offences but for longer periods, thus violating Article 37(b) of the CRC.
	The reality is that the number of children in custody has more than doubled in 15 years, increasing by 110 per cent, so that approximately 3,000 are now in custody. The number of children under 15 in custody has increased by more than 700 per cent. I wish that the noble Lord on the Tory Front Bench would listen; these are terribly important points. The number of children under 15 in custody has increased from 100 to over 800. The numbers are staggering, even more so when one considers that the number of indictable offences has actually decreased by 20 per cent over the same period, that clear-up rates have been stable since 1995 and that 42 per cent fewer people report being victims of crime.
	That is crucial evidence on the extent to which we are criminalising our young people today. I believe that it is a disaster for our society and our young people. We know beyond peradventure that custody does virtually nothing to prevent reoffending, as more than 80 per cent of very young offenders 15 and under reoffend. Moreover, as has just been discussed, the experience of custody, the removal from home, the disruption of lives and the inevitable alienation of our younger generation, who represent our tomorrow, all of those actually promote criminal behaviour.
	We already know that these young people represent the most damaged and vulnerable in our society, for whom treatment and help is desperately needed. However, I fear that we have said this so often that it is becoming a platitude and no one listens to it any more. I am in no way trying to justify or minimise the crimes that young people can and do commit. They can be awful, even disgusting. But let us remember the evidence: offending has been stable; it is custody that has gone up. Furthermore, as we will hear over and over again, where children are concerned the CRC rightly insists that the welfare of the child is paramount, that his need as well as his deed must be of central consideration and that he is not, therefore, to be treated as a small adult.
	I am aware that we are developing a culture in our society in which the young are increasingly disliked, even feared. This is being reflected in our legislation. ASBOs, to which the noble Lord, Lord Judd, referred, are born of this. I am also aware how much Ministers dislike international comparisons, but the fact is that, of every 100,000 under 18, we lock up 23—I think that this has already been mentioned—while in France the figure is six.

The Earl of Onslow: May I briefly interrupt the noble Baroness? I sincerely hope that she goes on quoting these figures time after time, as I will, because the Government have to get them into their head.

Baroness Linklater of Butterstone: I thank the noble Earl for that.
	Up the road in Scotland, where, as I have said time and again, all is far from perfect, we at least do not lock up children in custody until they are 16.
	I turn to the amendment in my name and that of my noble friend. It is important that we do everything in our power to ensure that it becomes a reality that custody is indeed used as a last resort, for we risk doing great damage to our society as well as our children—and we must keep on saying "children". The amendments go some way towards achieving this by requiring the use of a YRO first, unless of course the offence is so serious that the YRO cannot be justified. It is an important safeguard, given the reality of what is happening in the use of custody for children today.
	The new clause in our amendment would require an ISSP—intensive supervision and surveillance programme—to have been tried before a detention and training order is imposed. The point of YROs is to enable the courts to have greater flexibility in their sentencing, which we welcome, so that the punishment fits not only the crime but the offender. Again, this presumes that all options are available. Having an ISSP as part of the new menu of YROs would further ensure that custody was truly a last resort—the last bulwark. However, it is important that the ISSP option should not be used as a substitute for other community sentences—it must come as the last ditch—although there is evidence that this is happening. However, if it is retained as the last ditch, custody is more likely to be the last resort. That is what our new clause aims to achieve.
	I have met and talked to the people who deliver ISSPs; I did so a year or so back in Peckham. I was very impressed by the commitment that they brought to the work, which is indeed very intensive. The work was, in this case, carried out by young men who were often from the same estates as the young offender and who offered understanding and friendship as well as the supervision required; they gave the sense of being involved in the same form of living. The evidence so far from the past four to five years is that these programmes are working well. However, the investment in time and money is considerable, though justified. That leaves only the question of the extent to which the programmes are available.
	It still remains possible for this provision to be bypassed either under Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000 or for "dangerous offenders" sentences under the Criminal Justice Act 2003 if the offence is so very serious or violent. Therefore, ISSPs do not act as a way out of bringing those other, more serious considerations to bear.
	I urge the Minister to give these amendments the most serious consideration, as they go to the heart of how we manage offending young people while keeping custody as a last resort, which I know that he, too, wants. I hope that he can reassure us that the necessary investment of money and manpower is in place so that this is a reality.

Baroness Carnegy of Lour: The noble Baroness has just made an important contribution. She knows a lot about these things and has put it simply. She pointed out that youth offending is static and that it is custody that has gone up. That is the truth of the matter and we should be very worried by it. The Minister tried to dismiss the notion that international comparisons are necessarily relevant, but he must be careful to look properly at those figures. They must be relevant. Young people are not all that different these days; they all take part in youth culture. Comparisons matter.
	The Government of the day should be giving a lead on this. We have gone a bit mad on young people's criminality. The media are a bit shocking on the subject; they interact with public opinion and people are afraid of what will happen when they meet a young person. It has all become completely out of hand. I think that the Government should be beginning to educate people about this; they should have the courage to give a lead. I am sure that my party would assist in that, from what I understand of its thinking. A lead should be given and people should begin to understand that, in most cases, shutting someone up makes the situation much worse. We all understand that it is occasionally necessary. For certain young people, there is, for a variety of reasons, no alternative. However, that is seldom the case. The figures that we have heard this evening are shocking. I wonder whether the Government might contemplate beginning to educate the public on this subject, which I believe would be extremely helpful.

Lord Ramsbotham: In the spirit of what many noble Lords have said, I have just three observations to make in adding my support to the amendments. First, I am glad that the noble Baroness, Lady Stern, mentioned the ridiculous Youth Justice Board target to achieve a 10 per cent reduction in the number of those in custody, as that highlights one of the problems. This area is bedevilled by a large number of silly and inappropriate targets, which deflect people from the real purpose.
	My second point is that, as I mentioned earlier, in our consideration of the Children and Young Persons Bill we have been discussing just this sort of problem in relation to children who are in the hands either of the Minister for Children, who happens to be in the Department for Children, Schools and Families, or of the social services. This shows up the lack of a joined-up approach. Surely if there is a Minister for Children and she really is responsible for them, she should be made responsible for pulling together all the people who have a responsibility in this area. We seem to have a totally fragmented approach, which I do not think is helpful.
	My third point reflects something that the noble Lord, Lord Judd, said. I have said this on many occasions in relation to many other things. None of this will happen unless someone is made responsible and accountable for making it happen. You can have Ministers speaking and officials writing goodness knows what, but unless somebody is made to do it, it will remain as a spoken or written word. The amendments highlight the need to have doers doing things rather than talkers talking.

The Lord Bishop of Chelmsford: I rise to support those remarks and to make three brief points. First, there is a danger in our debates of pulling apart the welfare of the child and the needs of the community. If we need a theme it is to bring those two things together. When we are serving the needs and welfare of children, we are serving the needs of society, the community and victims. When we are attending to the needs of victims and society, we should properly be attending to the welfare of children. If we can hold those things together we will get it right.
	Secondly, public policy needs to be consistent. When local authorities take children into care, the one thing they seek to avoid, if possible, is putting them into residential units, which is a last resort solution for children. We have the needs of the child in mind and our experience of such homes in the past means that we are very cautious about that solution. Thirdly—this has not been said in the debate—if it is necessary within those principles to take children into custody, such must be the conduct that that too serves the interests of children and their welfare. There is a danger of saying, "We don't know what to do with this hard core of children and young people who we can't cope with in society, so we must put them in custody". The noble Earl, Lord Listowel, reminded us earlier of 60 young people with three staff looking after them. That is 60 too many in custody. The style and content of what we are seeking to achieve for children who are held in custody is part of this issue.

The Earl of Listowel: I apologise for being absent, but I was attending a reception at No. 11 Downing Street for the National Grid Transco offender programme, which has reduced reoffending in its charges from 70 per cent to 7 per cent by giving young people, and now the older offenders with whom it works, a mentor and a guaranteed job after three months' training. That is relevant to what we are discussing in demonstrating how effective, as an alternative to custody, it can be to engage young people with a mentor. It is difficult with only three officers for 60 young people in a YOI, but to engage them with a mentor and to give them something constructive that they want to do in the end leads to a win-win situation—win for business and win for society.

Baroness Howe of Idlicote: Having listened to the debate, I add my wholehearted support. The noble Baroness, Lady Linklater of Butterstone, put her finger on the benefits of this approach. I hope that the Minister will take it to heart and respond, as clearly the intentions are good and the results are good for the community, whom we have to do our best to protect. Above all, we need the extra resources to stop the offender reoffending. I agree entirely with the right reverend Prelate.

Baroness Falkner of Margravine: In anticipating what the Minister might say in response to Amendment No. 6, I thought that I would get my retaliation in first. I want to say briefly why I think the Bill's current option will not help in reversing the increase in child custody that my noble friend Lady Linklater so eloquently pointed out.
	We know that without a clear restriction on custody, courts will wholly or largely substitute that for other community sentences. There is good evidence for that. The ISS programme, which was rolled out nationally in October 2003, was made available to courts on a significant scale with 5,568 placements in 2005-06, and 1,350 places in use at any one time. It has been heavily promoted as an intensive and robust programme, and the evaluation evidence is that it successfully addresses a wide range of needs among serious and persistent young offenders. Yet, as my noble friend, pointed out, in a period when youth crime has been stable, the number in custody has risen.
	As currently drafted the Bill is unlikely to change that. The Government argue that under Clause 1(4), ISS would be available only for offences that are
	"(a) ... punishable with imprisonment",
	and when,
	"(b) the court is of the opinion that the offence ... was so serious that",
	custody would otherwise be appropriate.
	However, the test in subsection (4)(a) simply identifies the maximum sentence a category of offence can attract, saying nothing about what the particular offence or person warrants. Subsection (4)(b) is highly subjective, which turns on the court's opinion. Neither of those provisions directly tackles the uses of custody, which is what we are seeking to address with the proposed new clause.

Lord Kingsland: As the noble Baroness, Lady Stern, said, custody is expensive and damaging, and in any case, it is largely ineffective. The JCHR wants statutory protection for government policy that custody should be the last resort. We have two amendments that seek to achieve that objective.
	I have a question for the noble Baroness, Lady Linklater of Butterstone. What if an offender commits a first offence that is so serious that the child represents a real threat to public safety? Both the amendments require a sentence that is below the custody threshold, but those circumstances must raise the question of whether one can generalise the situation to that degree. That is just a thought.
	We fully agree that a custody sentence should be the last resort; it should be used only when everything else has been tried. In that sense we are completely in tune with the animating spirit of the amendments. The JCHR report states that the Government are also in agreement with them. The difficulty with these amendments is the one that faced the noble Baroness, Lady Stern, in the amendment she moved almost at the beginning of today's proceedings. How do we make such amendments have operational effect? When we get into the micromanagement of the criminal justice system, at every turn there are specific provisions in different forms of legislation, some of which stretch back years if not decades, which frustrate these objectives. Putting them on the statute book will not override the specific obligation.
	That is why we have taken a slightly different approach from that of my noble friend and the noble Baroness, Lady Linklater, by tabling a series of amendments in the sentencing part of the Bill to give sufficient flexibility to the bench of magistrates or the circuit judge to prevent them having to ratchet up orders until a custodial sentence becomes obligatory for a minor offence.

The Earl of Onslow: I absolutely take the point, but I refer to new paragraph (b), which states:
	"the offence, or the combination of the offence and one or more offences associated with it, was so serious that, notwithstanding the age of the offender",
	an order under subsection (3)(a) or (b),
	"cannot be justified for the offence".
	Does that not cover the objection to which the noble Lord reasonably referred?

Lord Kingsland: It may well. I simply put the question; I did not know what was the answer. The noble Earl appears to have given me, as he so often does, a completely armour-plated, ocean-going explanation.

Baroness Linklater of Butterstone: I just thought that I might add to the list. I gabbled it rather, because I am very bad at reading out the names of the sections. Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000, or dangerous offender sentences under the Criminal Justice Act 2003, can bypass the situation that we are talking about. Where the noble Lord is worried about what to do about the very serious and violent offender, there is provision for that to be invoked.

Lord Kingsland: So we can be reassured that the amendments are not contaminated by the matter that I raised.
	I emphasise again that, in my view, the key to all this is trust: trust the individual who is trying the case; trust him to get it right. Do not require him to end up awarding a custodial sentence in inappropriate circumstances.

Lord Hunt of Kings Heath: This has been a very interesting and serious debate. I must say that the prospect of the noble Earl, Lord Onslow, being left-wing struck me with some amusement, as it certainly did him.

The Earl of Onslow: With not nearly as much horror as it struck me, I can promise the noble Lord.

Lord Hunt of Kings Heath: But it does remind me that he is also a radical reformer of your Lordships' House, as I well remember from when we debated the Bill of the noble Lord, Lord Steel. He, the noble Lords, Lord McNally and Lord Strathclyde, and I were each one of four opposed to the massed ranks of supporters of the noble Lord, Lord Steel. That is by way of inviting him to come back to our regular Friday engagements on that most important matter.
	I was very interested in the comments of the noble Baroness, Lady Stern, about the late Lucy Faithfull. My father, in addition to being a clergyman, was a social worker employed by Oxford City Council. For some time, Lucy Faithfull was director of social services. The noble Baroness will know that it was not only in your Lordships' House that she was a very much admired person. I shall come to the point that the noble Baroness raised about that piece of legislation.
	I was also interested in the whole question discussed by several noble Lords about how young people are regarded by society. There was a view among noble Lords that part of the reason that more young people are in custody reflects not what we might regard and what I described earlier as rational public opinion, but more emotion, where young people wearing hoodies are stigmatised. As someone with a number of young children still at home or at university, that concerns me.
	The answer to the noble Baroness, Lady Carnegy, is that the Government have a responsibility for encouraging society as a whole to think positively about the contribution that most young people make to our society. I think that young people now have to work much harder at school than I ever had to. Many of the pressures that they are under are considerably greater than when I was growing up. I also think that a benefit of the new department for children will be to enable us to have a greater focus in projecting the good things that so many young people do and represent. It is important to bear that in mind. Equally, with those children who are not so good, we have to have custodial sentences available as an option, but I agree that it should be as a last resort. That is what the law is and that is what we will seek to do in practice.
	The noble Lord, Lord Ramsbotham, made some interesting comments about targets. I know all about targets as a former Minister for targets in the National Health Service. I well understand what he says: that when separate government departments, quangos or executive agencies have targets inconsistent with those of other agencies, you run into trouble. My experience is that that is easier to say than to do. It is not for the want of trying. The new PSA target approach recognises much more the need for interdepartmental consistency.
	I am certainly not an expert but in the new approach to targets for local government, apart from giving much greater discretion to local authorities about which targets they choose, there is a much greater effort to get much greater consistency of approach because of the duty of partnership now laid on the partners of local government at local level. You cannot wave a magic wand and have that happen overnight, but it is part of our aims. It is the reason why joint responsibility between my department and the department for children on youth justice matters is so important.
	On Amendment No. 5, the Government's view is that custody is already a last resort for young people. The Judicial Studies Board, in the Youth Court Bench Book issued in March 2005, emphasised that. I assure the Committee that we will be seeking the help of the Sentencing Guidelines Council to issue guidance on sentencing, especially on youth rehabilitation orders.
	I refer the Committee to Section 152(2) of the Criminal Justice Act 2003, which states:
	"The court must not pass a custodial sentence unless it is of the opinion that the offence, or the combination of the offence and one or more offences associated with it, was so serious that neither a fine alone nor a community sentence can be justified for the offence".
	The Bill makes it even clearer that custody is a last resort. I must say that we do not think that our approach is out of step with what is envisaged under the new clause contained in Amendment No. 5. I cannot offer an absolute undertaking, but I can agree to take this back to see what the Government can do with it.
	I hope that that shows that I do not disagree with many of the philosophical viewpoints that have been put forward. Also, on the question about people being placed in custody for minor offences, sometimes the tables are a little misleading. I offer to write to the Committee with a broader explanation. Many offences in the table, which may include robbery, for instance, would not be listed as violent. There are issues about the description and categorisation on which I offer to provide an aide memoire, if noble Lords would find it helpful.
	Turning to Amendment No. 6 I accept that, in every case where a court is contemplating a custodial sentence for a child or young person, the court ought to consider whether a youth rehabilitation order with intensive supervision and surveillance or intensive fostering is appropriate before resorting to the sentence of ultimate severity. I agree with the noble Baronesses, Lady Linklater and Lady Falkner, over the importance of that option for the courts.
	The problem that we have, which was hinted at by the noble Lord, Lord Kingsland, is accepting the proposition that the court cannot impose a custodial sentence unless the young offender has previously received a youth rehabilitation order with intensive supervision and surveillance. Of course, we see ISS as a last step before custody. Indeed, it has been designed for those young offenders who would, if it did not exist, be subject to a custodial sentence. We are at one with the noble Baronesses on that.
	We believe that the Bill provides adequate safeguards to ensure that ISS is used as a direct alternative to custody. The points raised about experience by the noble Baronesses are interesting. The aim of ISS was to reduce the frequency and seriousness of subsequent offending among persistent offenders. Research shows that the frequency of offending in the intensive supervision and surveillance sample went down by 39 per cent over two years. I know we can all trade figures and I am always urging caution in that regard, but that must have some encouragement for all of us.
	I am discovering that "uptariffing" is the word used in criminal justice circles. I understand what is meant by that and it is not good. It is to be avoided but we know what we mean. We are obviously concerned about that and our hope is that sentencing guidelines will assist sentencers in ensuring that penalties are appropriate.
	There has been a very interesting debate about the balance between micromanagement, to which the noble Lord, Lord Kingsland, referred, and discretion to the judiciary. It depends which argument we want at any one time and we all have to be cautious and recognise that there is always a balance. There are times when the Government consider it is right to be prescriptive, and there are circumstances in which discretion needs to be given to the judiciary. We will argue about that.
	However, we have the problem that the detention and training order is the only custodial order available to the youth court. Generally, it is the sentence available to the courts for a juvenile who has committed an offence which, if committed by an adult, would be liable to a maximum sentence of less than 14 years' imprisonment. All the same, as the noble Lord, Lord Kingsland, suggested, it means that it is available for some very serious offences. For example, an offender may have committed several violent offences previously and not received a youth rehabilitation order with intensive supervision and surveillance or intensive fostering. The clause as drafted would preclude the courts from imposing a custodial sentence where it deemed it necessary. For that reason, we have problems with Amendment No. 6, although I hope noble Lords will recognise that we do not have any disagreement at all with the general principle of it being used as a last resort for custody.

Lord Thomas of Gresford: These are not philosophical musings on this side of the Committee, as the Minister seems to suggest. We are dealing with practicalities and realities. "Last resort" is always mouthed. It has been mouthed for the last 15 years that prison is the last resort, but political pressure has driven the judiciary, whether at the magistrates' court or the Crown Court, to increase sentences over and again. "Retariffing", or whatever word the Minister used—

Noble Lords: Uptariffing.

Lord Thomas of Gresford: Uptariffing, which sounds like something to do with swans, has been going on due to political pressure from both governing parties over the last 15 years. We look to this Government to put a stop to it. The Sentencing Guidelines Council does not make any difference; the political pressure continues. The Bill unhappily has failed to meet that challenge. Amendments Nos. 5 and 6 are attempts to do precisely that.

Lord Hunt of Kings Heath: I wish I had never used "uptariffing" and I will now never be forgiven or forgotten for it.
	I did not mean to imply that the debate was a meandering of pleasantries that had no impact on the reality of young people in custody or going through the youth justice system. If noble Lords thought that, I apologise. I take this issue very seriously indeed.
	As far as political pressure is concerned, inevitably we are all conditioned by public opinion and there has been a debate for some years about the appropriateness of custody. However, I think I have made it clear from what I have said today that we regard custody as the last resort. The development of youth rehabilitation orders is a reflection of that, and intensive supervision and surveillance programmes are part of that philosophy.
	I have said that I have a problem with Amendment No. 6 because we think it would unduly fetter the discretion of the judiciary. I am very willing to take back Amendment No. 5 to see whether the Government could support it or something like it.

Lord Elystan-Morgan: I express my joy and gratitude at what the Minister has said concerning the intention that there should be a directive issued by the Sentencing Guidelines Council in relation to youth sentencing. As the Committee will well know, it is a most high-powered body presided over by the Lord Chief Justice.
	Under the Criminal Justice Act 2003, a breach of the guidelines does not render a sentence unlawful, but it is within a whisker of that result because the clearest hint is given to the Court of Appeal that the sentence would be unsupportable. For that reason, what the Minister has said has come very near to everything that would have been achieved by the amendments we have been discussing on a declaration of custody being the last resort. In other words, I regard the Minister as being almost totally rehabilitated. I wonder whether he could give us some idea whether the publication of such a guideline would coincide roughly with Royal Assent.

Lord Hunt of Kings Heath: I cannot answer that because it is not for me to dictate to the guidelines council. It will have to give careful consideration to it. Of course, I can well understand why the noble Lord wishes to see the guidance available as soon as the Act was brought into operation.

Baroness Carnegy of Lour: When the Minister talked about my remarks about the Government giving a lead, he seemed to think that what I was asking for was a lead on the subject of how most people are all right. What I was asking for was a lead on whether custody actually works for young people. Does the Minister think that the Government would be prepared to say that custody is damaging for most young people, because that is what I was asking?

Lord Hunt of Kings Heath: Clearly we are not satisfied with the outcomes of custody for many young people. Alongside the statement I have repeated that this should be seen as a last option, the introduction of youth rehabilitation orders and the other programmes, it is clear that we need to do much more in terms of educational programmes and reintegrating into society young people who have been in custody. That is where our joint work with the Department for Children, Schools and Families is so important.
	I am afraid that custody, although a last resort, is a necessary option. We recognise that we have to do much more for those young people who are placed into custody.

Lord Ramsbotham: Once in a young offender establishment, an elderly senior officer admitted to me that until a speech and language therapist had explained to him how he could deal with young people, he and his colleagues had been damaging them because they had been treating everything as bad behaviour and punishing them accordingly, rather than getting to the root of what was wrong. I believe that that goes to the heart of the administration of young people's justice.

Baroness Falkner of Margravine: Before the Minister loses his train of thought on Amendment No. 6, I should like clarification on something he said that confused me. He suggested that Amendment No. 6 would rule out the ability to bypass the system on the sentencing of certain offences. Does he not accept that Sections 90 and 91 of the Powers of Criminal Courts (Sentencing) Act 2000, or "dangerous offender" sentences under the Criminal Justice Act 2003, cover all the serious and potentially serious violent and sexual offences? Examples are murder, manslaughter, arson, rape, sexual assault, GBH/wounding with intent, firearms/prohibited weapons use/possession/distribution and robbery/assault with intent to rob, domestic burglary/aggravated general burglary and drugs class A to C production/supply/possession with intent to supply. All those things would still stand where they do.

Lord Hunt of Kings Heath: My understanding is that the amendment applies to detention and training orders. They can still be given for some serious offences, such as inflicting grievous bodily harm and even racially aggravated grievous bodily harm. I am happy to write to the noble Baroness with more details, but the advice I have been given is that what most people regard as serious crimes could be encompassed within her amendment.

The Earl of Onslow: We have gone on for more than an hour and I thank all noble Lords who have spoken. In the debate on a previous amendment, I quoted the Benefit of Clergy and the general confession. On this amendment, we will move from the Book of Common Prayer to the King James Bible, which says something about there being no joy in heaven greater than that of a sinner that repenteth. I thank the Minister; it is a bit unkind to put him in the position of a sinner—perhaps he is a minor misdemeanourer. He has said that he will take the amendment away, for which I am extremely grateful.
	When I give speeches to schools, I always start by saying, "The youth of today show no respect for their elders. They have no manners and they are idle and feckless". One watches the faces becoming angry. One then says, "Don't worry, that was written on clay tablets in Sumeria 2,500 years ago". We must not, at our advanced age, think that the youth of today are any worse or better than we were. I wince with embarrassment when I think of some of the things that I and my friends did as children, or even slightly older—actually, yesterday, now I come to think of it. Having said that, I really am pleased that the Minister will take this away. I have not bounced this by the noble Baronesses, Lady Linklater and Lady Stern, but before he brings it back, perhaps we could see him and decide whether we can have an input. I am pleased that the noble Baronesses are acknowledging this.
	I was very impressed by the comments of the noble Lord, Lord Ramsbotham, about targets. I do not think that that is totally germane to the amendment, but it is germane to what is going on behind it. That is something for policy rather than amendment—I do not quite see how it could be worked into an amendment. I thank the Minister for what he has said and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Baroness Linklater of Butterstone: had given notice of her intention to move Amendment No. 6:
	After Clause 1, insert the following new Clause—
	"Youth rehabilitation order with intensive supervision and surveillance
	In section 100(2) of the Powers of Criminal Courts (Sentencing) Act 2000 (c. 6) (offenders under 18: detention and training orders), after paragraph (b) insert—
	"(c) in relation to an offence committed after the commencement of section (Youth rehabilitation order with intensive supervision and surveillance) (3)(a) of the Criminal Justice and Immigration Act 2008, unless he has previously received a youth rehabilitation order with intensive supervision and surveillance under that section.""

Baroness Linklater of Butterstone: I have already spoken to this amendment. I thank all those who participated in a debate which I think is central to the Bill. I am particularly grateful to my noble friend Lady Carnegy of Lour—she is indeed a friend. There has been no dispute, except perhaps with the Minister, who appears still to think that our amendment would in some way curtail options. Perhaps once he has read Hansard, he will review his position.

Lord Hunt of Kings Heath: I do not think I am allowed to reply.

Lord Brabazon of Tara: If there is to be a debate on the amendment, it must be moved.

Baroness Linklater of Butterstone: I beg to move.

Lord Hunt of Kings Heath: This is Committee stage, and I take the opportunity to say that I believe that the advice I have received is right. However, I will write to the noble Baroness setting out in detail the reasons for that, so that there can be further consideration.

Baroness Linklater of Butterstone: In that case, I thank the Minister and I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	Schedule 1 [Further provisions about youth rehabilitation orders]:

Lord Bach: moved Amendment No. 7:
	Schedule 1, page 150, line 10, leave out "or an officer of a local probation board" and insert ", an officer of a local probation board or an officer of a provider of probation services"

Lord Bach: In moving Amendment No. 7, I shall also speak to Amendments Nos. 8 to 11, 18, 21, 24 to 27, 42, 42A, 50 to 62, 63A, 64A, 179 and 180. These are miscellaneous, minor and technical amendments, but, out of courtesy to the Committee, I intend to speak briefly to them. They come in two batches: I will deal first with Amendments Nos. 24, 63A, 64A, 179 and 180, which make up the smaller batch.
	Amendment No. 24 ensures that the provisions in Part 1 are properly aligned with Armed Forces legislation and vice versa, and that the provisions fully reflect the new probation arrangements in Part 1 of the Offender Management Act 2007, which are to come into force in phases from 1 April 2008. Amendments Nos. 63A and 64A to Clause 7 simply remove definitions which we have concluded are redundant in this context. Amendment No 24 to Schedule 1 ensures that the schedule reflects the special sentencing powers of service courts. Amendments Nos. 179 and 180 to Schedule 36 ensure that the Armed Forces Act 2006, which applies the Criminal Justice Act 2003 for certain purposes, reflects the amendments made by the Bill to that Act. The amendments ensure that the civil and military sentencing frameworks remain in balance.
	The remaining amendments in this group, starting with Amendment No. 7, are necessary to make reference to Part 1 of the Offender Management Act 2007. They ensure that the duties and responsibilities that the provisions on youth rehabilitation orders place on local probation boards are also placed on other providers of probation services. Noble Lords know that the Offender Management Act 2007 places the statutory duty for the provision of probation services on the Secretary of State. The Secretary of State may make provision himself, or may contract with other organisations to provide those probation services. Any other organisation, whether public, private or third sector, that is so contracted will be referred to as a provider of probation services. The staff delivering these duties will be known as officers of a provider of probation services.
	During its passage through Parliament, the then Offender Management Bill was amended to ensure that probation services delivering assistance to courts would be carried out by public-sector providers. This measure can only be repealed by an order, subject to the affirmative procedure. An order subject to the affirmative resolution procedure, making similar consequential amendments to both primary and secondary legislation, is about to be laid in draft before Parliament. This order also seeks to ensure that the duties and responsibilities currently placed on local probation boards across the statute book are also placed on the new probation structure.
	Phased implementation is planned for the introduction of Part 1 of the Offender Management Act 2007, with the first phase being implemented from 1 April this year. There will be references to both local probation boards and providers of probation services on the statute book in the short term. These amendments update the Criminal Justice and Immigration Bill to reflect the dual references to both local probation boards and providers of probation services. I beg to move.

On Question, amendment agreed to.

Lord Hunt of Kings Heath: moved Amendments Nos. 8 to 11:
	Schedule 1, page 151, line 2, leave out "or an officer of a local probation board" and insert ", an officer of a local probation board or an officer of a provider of probation services"
	Schedule 1, page 151, line 27, leave out "or"
	Schedule 1, page 151, line 28, at end insert "; or
	(iii) an officer of a provider of probation services,"
	Schedule 1, page 154, line 16, after "board" insert—
	"(ba) an officer of a provider of probation services,"
	On Question, amendments agreed to.

The Earl of Onslow: moved Amendment No. 12:
	Schedule 1, page 155, line 37, leave out from "not" to "a" in line 38 and insert "make"

The Earl of Onslow: Again, I speak from the point of view of the Joint Committee on Human Rights. When I discovered that it was not mandatory for children to be represented, I was completely horrified. That a civilised society could prosecute vulnerable, probably ignorant, deprived children, however brutish or unpleasant they might be in appearance, forcing them to appear before some court or other, without properly trained legal assistance, strikes me as abhorrent. I can put it no lower than that. It is almost certainly against Section 6 of the Human Rights Act, and it is against Article 12 of the UN Convention on the Rights of the Child.
	I saw the noble Lord's private secretary before we came in, and I asked her to ask the Minister to find out what percentage of children did not have legal representation. If the numbers are low, there can be no cost implications at all. If the numbers are high, it is a screaming scandal and has to be put right. As noble Lords know, Cardinal Morton's fork worked out for Henry VII, as he said, that "if you do not look rich you are hiding your money, so I am going to tax you. If you do look rich, you have a lot to spend, so I am going to tax you". On this issue, if there are none, it can be afforded, and if there are many, it must happen. I beg to move.

Lord Mayhew of Twysden: I support this amendment. I do not see how it can be said that we are treating custody as a last resort, unless we have secured that the court has the advantage of representation as to the circumstances of the offender and those surrounding his case. It is sometimes forgotten that it is the duty of a legal representative to assist the court, not simply to advance the case of his or her client. It is very much in the interests of the court, and therefore justice, that a child or young person should be legally represented in all circumstances, save the most exceptional. I am warmly in support of this amendment.

Baroness Stern: I am very grateful to the noble Earl, Lord Onslow, for introducing this amendment. I apologise for missing the first 30 seconds of his contribution. I think he said that the Joint Committee on Human Rights was very surprised to find that there is no legal requirement for children to be represented in legal proceedings, as indeed we were.
	The Bill expressly provides for representation when a fostering order is being considered, but not when a child might go into custody. In correspondence with the Government, the Minister told the committee that this was a reasonable provision because there are already a number of safeguards in place to ensure that a young person will be granted publicly funded representation where necessary, mainly in the form of the interests of justice test in the Access to Justice Act 1999; and that legal representation is available to anyone facing criminal proceedings where it is in the interests of justice that public funding should be granted. The Minister also told the committee that accompanying guidance states that the court should give consideration to whether the defendant is of a young age, and to the defendant's ability to understand the proceedings or to state his own case.
	The Government also said, in probably the most significant part of their submission, that extending the scope of publicly funded representation for children,
	"could impact significantly on legal aid funding".
	The Joint Committee on Human Rights, needless to say, was not convinced by the Minister's arguments. The committee was surprised, given the provisions of the Convention on the Rights of the Child. I draw the Minister's attention to general comment 10, issued by the Committee on the Rights of the Child in 2007. The general comment has a large section on the right of the child to be heard. Article 12(2) of the Convention on the Rights of the Child requires that a child be,
	"provided with the opportunity to be heard in any judicial or administrative proceedings affecting the child, either directly or through a representative or an appropriate body in a manner consistent with the procedural rules of national law".
	The committee also stresses the right to effective participation in the proceedings. Finally, the committee says:
	"The child must be guaranteed legal or other appropriate assistance in the preparation and presentation of his/her defence".
	The committee recommends that the state parties provide as much as possible for adequate, trained legal assistance. This is a rich country. The Committee on the Rights of the Child would clearly expect the United Kingdom to be able to afford trained legal assistance for children coming before the courts. It is my experience and, no doubt, that of those who are involved in this work that the children and families caught up in this system are overwhelmingly poor, inarticulate and ill resourced. They need legal help to make sure that the outcome of their confrontation with the system is a just one. I support the amendment moved by the noble Earl, Lord Onslow.

Lord Ramsbotham: I, too, support the amendments very strongly, and draw attention again to two aspects. In our discussion of children and young persons with regard to the Bill, a very large amount of time has been devoted to advocacy and to making certain that advocates are available whenever disciplining young people is involved. Again, that links to the fact that this should undercut the whole administration of youth justice. The second subject of considerable concern was the suggestion that young juvenile asylum seekers and others should brief their own solicitors. Have you ever heard anything so silly when they do not have English as their first language and know nothing about the law, let alone about this country? This suggests that this whole business of the legal representation of the young needs to be looked at seriously right across the board and not only in the context of the amendment.

Baroness Linklater of Butterstone: I, too, support the amendment, and shall speak to my Amendments Nos. 13 to 16, which are grouped with it.
	I absolutely agree with the noble Earl, Lord Onslow, that it is astonishing that there is no presumption in Schedule 1 that children are entitled to publicly funded representation in criminal proceedings. In paragraph 19 in Part 2 of the schedule, a young person can be legally represented before a local authority residence or fostering requirement can be imposed under a YRO. However, no legal representation is required before any other version of the YRO can be imposed, including even the ISS. This astonishment was echoed by the JCHR, and so it should be by the rest of us when the outcome could be so serious, and with the long-standing implications of which we are all aware.
	Furthermore, the best interests of the child are the primary consideration, as required by the CRC. As it happens, provision is made in the Bill for when a fostering requirement is being considered, and quite rightly, but why not for when all the other requirements, which have similar important implications, are being considered? What is the logic for excluding the other requirements for legal representation, in particular the ISSP, which may be imposed as a last resort before custody? What could be more serious for the future of a child than that? Indeed, a breach of the YRO may result in custody. It would be contrary to Article 6 of the ECHR, which says that legal representation is required for children to have a fair hearing. The court must be in a position to have all the circumstances of the child explained to it, particularly if the suitability and proportionality issues are to be properly addressed and if the child is to have all decisions properly explained to him or her.
	I understand that the Government regard the "interests of justice" test as a safeguard under the Access to Justice Act 1999, with consideration given to the age and ability of the defendant to understand what is going on. I also understand that the Government have concerns, as we have already heard, about the potential costs of such representation for children in criminal proceedings. That is simply not worthy of the Government on such an important issue; I want to rap them over the knuckles for that. I also know that, because of costs, there is a risk that the children may get poorer representation. Neither of these possibilities is acceptable; rather, they underline the importance of explicit, statutory representation for children, unless in the unlikely event there happens to be an "informed waiver of representation". It is inappropriate to argue, as the Government do, that legal representation would be unavailable to a child who was refused it, who failed to apply for it, or who behaved badly, given the potentially life-changing outcomes of the proceedings. Clearly, it must be in the best interests of the child that there is a general right to legal representation, and we wholeheartedly urge the Government to support our amendments.

Lord Elystan-Morgan: I, too, support the amendment, with all the fervour that I can command. The case proves itself over and over again. Legal aid is a dark cloud that hovers on the horizon of justice all too often. This has a lot to do with the fact that those funds comes from a small department that has a limited budget and with the fact that comparatively small increases year by year reflect themselves in substantial percentages. I have been aware of that for many decades, and it is one of the great impediments to the development of justice in our land.
	I have no doubt that there is a massive moral obligation and, I believe, a convention obligation on the Government, with regard to the rights of the child. It is not sufficient to say that the child's situation must somehow or other contract itself into a situation that justice demands. It should be the other way round: in other words, the child has a right to representation unless the situation contracts itself out of the consideration of justice.
	For those reasons, I urge the Government to reconsider the position. Not only is it a matter of justice, it is a matter of considerable assistance as far as the court itself is concerned. More time and money are lost by judges and magistrates going out of their way to satisfy themselves that they have covered every possible situation in relation to an unrepresented defendant than in the opposite case. That has been my experience.

Baroness Butler-Sloss: For the reasons given by noble Lords in this discussion, I strongly support the amendment. I would like to underline what the noble Lord, Lord Elystan-Morgan, has just said.
	First of all, for everybody—or nearly everybody—going into court is quite a frightening experience. For most children, it must be very frightening. They do not necessarily have family with them; they do not necessarily have family at all. It is a huge injustice to a child to ask him or her to go into court without anyone who can tell them how to behave and what to do or to alert the court to what is needed to be known. I really feel that this country is in the state of being unjust to children on this matter. It is also counterproductive—to use that appalling word—because, as the noble Lord, Lord Elystan-Morgan, has already said, children or other people who are not represented waste the time of the court. I know that from my own experience. It takes longer for cases to be heard; judges and magistrates fall over backwards to try to help the children, and cases that could be disposed of quickly, sensibly and to the best advantage of the administration of justice as well as the best advantage of the child drag on because the child is not represented.
	There are good, practical cost implications. Of course, legal aid will be a concern, but, if legal aid is seen in the light of the cost of the administration of justice, an area at which, it seems to me, government almost never looks, we can see how much can be saved by spending legal aid.

The Earl of Listowel: I am sure that the Minister must listen with great interest to what my noble and learned friends have said. I add a supplementary question that he may care to write to me on.
	I reflect on what my noble and learned friend Lady Butler-Sloss said about the confusion of children in such circumstances. The Michael Sieff Foundation, a child welfare charity of which I am a trustee, proposed some time ago that there should be child defendant packs for every child going into court. I would be grateful to the Minister if he could let me know what progress has been made in introducing such packs, so that every child, even if they lack legal representation, at least has this support to orientate themselves in the court—if they can read.

Lord Clinton-Davis: I did not intend to participate in this debate, but I found the remarks of the noble Lord, Lord Elystan-Morgan, and the noble and learned Baroness, Lady Butler-Sloss, compelling.
	My experience as a lawyer suggests that the Government ought to think seriously about this situation. I find that it is impossible to support what is apparently on paper at the moment. I hope that my noble friend will say that he will think seriously about this situation.

Lord Kingsland: Since 2 October 2006, defendants appearing before magistrates' courts and youth courts have been required to pass the financial eligibility test to qualify for publicly funded representation. However, since 1 November 2007, all defendants under the age of 18 are passported through the means test. In the debate in another place held on the sixth day in Committee, the Minister, Mr Hanson, said:
	"I take the view that whatever our arguments around the question of publicly funded support under the 1999 Act and the amendments to it, from 1 November there will be sufficient safeguards to ensure that those individuals who require publicly funded support will get it".—[Official Report, Commons Criminal Justice and Immigration Bill Committee, 23/10/07; col. 186.]
	By the expression, "those individuals", I take him to mean everyone under the age of 18 who appears in court.
	The determining statute for legal aid is the Access to Justice Act 1999. That ensures that all defendants must satisfy what is described as the "interests of justice" test to qualify for funded representation. That test plainly applies to circumstances in which someone is likely to be imprisoned, but more broadly it is better expressed as posing the question, "Is this individual's liberty at risk?". It is that issue which is of crucial significance, particularly in relation to youth rehabilitation orders. There are certain combinations of a youth rehabilitation order which would amount to quite a serious deprivation of liberty and would fall squarely within the interests of justice test.
	The ideas that animate these amendments are compelling, but we all recognise that there is great pressure on the legal aid budget. The noble and learned Baroness, Lady Butler-Sloss, has rightly pointed out that actually there is a lot of misplaced weight on that budget because money spent publicly to fund representation saves an enormous amount of court time and leads more often than not to higher quality judicial decisions. But that is a general argument about legal aid upon which the Minister may or may not wish to express an opinion. The issue to which the Minister must address himself is how the 1999 Act bears on youth sentencing.

Lord Hunt of Kings Heath: This has been an interesting debate. The amendments seek to ensure that all children and young persons are publicly funded where the court is considering opposing a youth rehabilitation order. The case has been argued with great force that there should be automatic funding, but I have to say that the Government would resist that. We believe that the existing arrangements for the provision of legal representation already provide sufficient safeguards for young defendants.
	I want to reflect in part the words of the noble Lord, Lord Kingsland. Under the Access to Justice Act 1999, all defendants must satisfy the interests of justice test in order to qualify for publicly funded representation. In deciding this, the court takes into account, among other factors, whether the defendant may suffer serious damage to his or her reputation or whether the charge is punishable with imprisonment. The court also gives consideration to whether the defendant is of a young age and to their ability to understand the proceedings or to state their own case. As the noble Lord, Lord Kingsland, pointed out, since October 2006, defendants appearing before the magistrates' court and youth court have also been required to pass a financial eligibility test to qualify for publicly funded representation, but from November 2007, all defendants under the age of 18 have been passported through the means test. That change has been widely welcomed by the professional judiciary and the Law Society.
	In practical terms, it will be extremely rare for a young person not to pass the interests of justice test. Indeed, the figures from January to December 2007 show that 95,000 legal aid applications were made, of which 1,598—1.7 per cent—failed the test. It is a small figure. Given his argument, the noble Earl will damn me if I do and damn me if I do not. I accept that it can be argued either way, but at least I have given him the straight figures.

The Earl of Onslow: Absolutely I damn the noble Lord if he does or he does not. A figure of 1 per cent when allied to what the noble and learned Baroness, Lady Butler-Sloss, has said, means that I could probably take the Minister out to dinner on the difference to the amount of money it is actually going to cost the legal aid budget. Not to have it in the Bill is, in my view, nothing short of barbaric.

Lord Hunt of Kings Heath: That is a bit harsh, and to be frank if he were to do so, it would be a very good dinner indeed. So good, in fact, that all noble Lords in this House assembled would also enjoy a very good dinner. I will come on to the question of resources because, as noble Lords know, I am responsible for legal aid at the Ministry of Justice. I want just to say that we cannot ignore the cost issue. The question for noble Lords is where the interests of justice test might not be met. The kind of example I have been given is one such as where a young person aged 17 in full-time education is charged with a relatively minor crime such as being drunk and disorderly in a public place. There may be an aggravating factor such as using offensive language to members of the public. Such a person might receive a youth rehabilitation order, depending on other sentences he may previously have received. The offender is familiar with the court process, having been before the youth court for relatively minor offences on previous occasions. Custody is not an option for such offence as he is not working for a living, so he will not lose his livelihood. Such a person might be held not to satisfy the interests of justice test.
	In answer to the noble Lord, Lord Kingsland, and the circumstances he suggested, I would have thought it rare for a young person who might receive a youth rehabilitation order not to meet the interests of justice test. Indeed, it is worth quoting from the Access to Justice Act 1999 the factors that the court has to consider,
	"whether the individual would if any matter arising in the proceedings is decided against him be likely to lose his liberty or livelihood, or suffer serious damage to his reputation; ... whether the determination of any matter arising in the proceedings may involve consideration of a substantial question of law; ... whether the individual may be unable to understand the proceedings or state his own case; ... whether the proceedings may involve the tracing, interviewing or expert cross-examination of witnesses on behalf of the individual, and ... whether it is in the interests of another person that the individual be represented".
	For the great majority of cases where the defendant is under 18 years of age, the interests of justice test will be held to be satisfied because the defendant would be considered to be unable to follow the proceedings. This is not being dealt with in isolation. The Legal Services Commission is about to start research into the consistency of decision-making under the interests of justice test. This will provide a much clearer analysis of the application of this test in relation to the under-18s and clearly it will inform any potential change of policy.
	Why do we give automatic legal aid representation for local authority residence or fostering requirements? The rationale for that is because both the LA residence and fostering requirements will require the young person to abide at somewhere other than their usual place of residence. That is different from the other YRO options which, although offering perhaps the most stringent community sentence in some cases, particularly with ISS, will not result in the young person physically being removed from their home.
	I understand the comments that noble Lords and the noble and learned Baroness, Lady Butler-Sloss, have made about legal aid and the interesting point that curtailing expenditure on legal aid may lead to additional costs in the administration of justice. That is a matter of which we are mindful. I am determined that the legal aid reforms should go with the grade of a more efficient system within the courts and that the incentives all work in the right direction.
	On legal aid spending—I know that noble Lords will quote back at me that you cannot take all the figures for international comparisons at face value—we have the most generous system in the world. I am proud of that. We have to make sure that we spend the money wisely. There has been a huge increase in legal aid spending over the past 10 years—it now stands at £2 billion—and we have to be careful that we spend it wisely. That is why I am persuaded that we have it about right and the access to justice test means that the right decisions are made.

The Earl of Onslow: The Minister said the total legal aid budget is £2 billion. I am sure that is right. How much did the 95,000 cases cost and how much would 1.5 per cent of them cost?

Lord Hunt of Kings Heath: The noble Earl asks how much the 95,000 applications cost. I do not have the full figures with me—I shall try to find them—but the average cost per case of legally aided defence in the magistrates' courts is £499. An estimated cost of agreeing to the noble Earl's amendment would be about £800,000. He may say that £800,000 is not a lot of money, but it is. We have to make sure when taking decisions on legal aid that we have as cost-effective an approach as possible. For those reasons I am going to resist the amendment.

Lord Mayhew of Twysden: The Minister has not addressed one facet of the amendment. He has told us of the issues that have to be determined by the court in deciding whether there shall be legal aid and that 1.5 per cent out of the 96,000 cases, or whatever it was, failed the test. But when you take into account the time it takes the court to try to determine each of the issues—on some of which it must be quite difficult to come to a conclusion—taking the net figure, is it really not worth £800,000 to avoid those costs?

Lord Elystan-Morgan: Will the Minister give careful consideration to the narrow point that I made about contracting out/contracting in? I do not suggest that there should be a blanket granting of legal aid in every case but, rather than the defendant having to prove that it would not be in the interests of justice for it to be refused, it should be the other way round and legal aid should be granted save in those cases where it would not be in the interests of justice to grant it. That is not being profligate with public money and it would add to the totality of justice in this situation.

Lord Hunt of Kings Heath: The current system seems to work rather well and I would be reluctant to change it. I accept that in any consideration of resources one has to look at all the contributing factors and the noble and learned Baroness, Lady Butler-Sloss, and the noble Lord have made important points which one has to reflect upon. Equally, these are cash-limited budgets. There has been a huge increase in the legal aid budget over the past decade and we have to be careful to ensure that we spend it as wisely as possible.

The Earl of Listowel: Will the Minister write to me on the point of what information is provided to child defendants in courts now? I would be very grateful.

Lord Hunt of Kings Heath: I apologise to the noble Earl for not responding to him. My understanding is that where a young person is arrested, cautioned and taken to the police station to be interviewed, the following process takes place: she will be informed of her right of access to free and independent legal advice and offered the services of the duty solicitor or her own solicitor. Those are the two main procedures. The noble Earl asked about information packs. I do not know the answer to that but I shall find out and let him know.

Lord Thomas of Gresford: The Minister has not really answered the point made by the noble and learned Lord, Lord Mayhew, about cost savings. If there are 95,000 cases to be considered, what is the administrative cost? What is the cost in court time? It is not that you are considering only the 1.5 per cent of cases that are refused; you have to consider the whole 95,000 cases. The Minister will know that there was a time when the legal aid authorities decided that everyone should have legal aid regardless of their means and so on because the cost of administering the scheme as it then was far exceeded the savings on the very small number of people who did not qualify. We are in exactly the same position.
	These youth rehabilitation orders will be imposed in a criminal court—it is not a family court, it is not a social agency—and the role of the lawyer comes in at the very beginning. We do not have plea bargaining in this country but we certainly have bargaining about charges—to what charges will the defendant plead guilty; what charges will the prosecution drop? An enormous saving in time and administration is made by bargaining of that kind. Then if there are pleas of guilty properly advised by a lawyer, the lawyer is then concerned with marshalling all those matters which are necessary for the court to come to a proper conclusion as to which restrictions and requirements would be necessary, in this case in the youth rehabilitation order that is being considered.
	Lawyers are mechanics who help the whole system to work much more smoothly and much better than it otherwise would do. If you put into court unrepresented defendants it is bound, as the noble and learned Baroness, Lady Butler-Sloss, has pointed out, to slow the whole system down. The savings of £800,000 pounds are really—

The Earl of Onslow: Pathetic.

Lord Thomas of Gresford: The word "petty" is being used to my left.

The Earl of Onslow: Pathetic.

Lord Thomas of Gresford: All right, "pathetic". I will say that then. The savings are tiny compared with the time, the energy and the bureaucracy involved in the noble Lord's schemes.

Lord Hunt of Kings Heath: I hear what the noble Lord says. I thought I had answered the noble and learned Lord, Lord Mayhew. It is sometimes difficult to aggregate figures, although we have the figures for legal aid, which I quoted. I am sorry, but £800,000 is still a considerable amount of money. My understanding is that, in the cases we are talking about, the test is refused if the offence is very minor, there is no likelihood of a custodial sentence, the youth is at the top of the age range and he or she understands court proceedings. I have said that the Legal Services Commission is going to undertake some research on consistency of approach. I am not aware that this is proving to be a huge administrative task, and in any case the LSC's research may well pick up issues that we need to improve. Today, however, I am afraid I am going to disappoint your Lordships.

The Earl of Onslow: I am almost speechless—and, as your Lordships know, I have been known to chatter a bit. We are talking about £800,000. What did the Government spend on the Dome? Around £800 million, because the noble and learned Lord, Lord Falconer, encouraged them to. Yet they cannot find £800,000 to represent the most poor and vulnerable in court. I am convinced that it costs the courts more than £800,000 not to have them represented. Perhaps the Minister owes me dinner on the extra money that is being spent by the courts in saving £800,000. That is pathetic, and I have every intention of coming back to the issue on Report. I sincerely hope that on that occasion I will get even more support than I have had today. Through gritted teeth, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 13 to 17 not moved.]

Lord Hunt of Kings Heath: moved Amendment No. 18:
	Schedule 1, page 158, line 28, leave out from "team" to ", and" in line 29 and insert ", an officer of a local probation board or an officer of a provider of probation services"
	On Question, amendment agreed to.

Lord Bach: I beg to move that the House be resumed. In doing so, I suggest that the Committee should not begin again until 8.33 pm.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.

Government Archives

Lord Rodgers of Quarry Bank: asked Her Majesty's Government what is their latest assessment of the arrangements for preserving Government archives and preparing official histories.
	My Lords, I am raising two separate but related matters: how government papers, including ministerial papers, are kept after leaving their working departmental offices and the record of major events described in Crown copyright official histories. The responsibility lies with the Cabinet Office and then, I suppose, with the Prime Minister, which is appropriate, as Gordon Brown identifies himself as a historian.
	In passing, I pay tribute to Tessa Stirling, the head of the Histories, Openness and Records Unit at the Cabinet Office, who was awarded a CBE in the New Year Honours. She has been well known to many professional historians for her long, devoted service, and she was very patient when I, not being a professional historian, asked some pressing questions.
	This is an opportunity for me to welcome the new history and policy project launched in December. Inspired by Cambridge University and others, endorsed by the All-Party History Group and blessed by Prospect magazine, it is designed to improve public policy through the better understanding of history. I hope that it will be successful.
	My first concern this evening is about government papers—lesser papers than Cabinet papers—which are stored until they are disposed of. My interest arose when I was seeking papers on two issues that were important when I was Secretary of State for Transport in 1976. Early in 2005, I asked the Department for Transport for papers arising from two ministerial areas: the public inquiry into the controversial widening of the Archway road, the A1, and critical decisions made by the Government on whether to support the proposed Tyne and Wear metro railway. Despite toing and froing between me and the department for over six months, I finally abandoned any hope of finding anything except a single, incomplete file.
	The departmental records officer went to a great deal of trouble, but I was unhappy about the condition of the papers kept in a repository at Hastings. It was possible, I discovered, that my papers might or might not have been retained. The contents of the files, although kept, might or might not have been accurately and comprehensively identified, and the titles might or might not have been changed. I am certainly not an archivist, but there is no point in keeping archives unless they are professionally catalogued and carefully managed. On the face of it, the papers of the Department for Transport were in a mess.
	Eventually, on 24 January 2006, I wrote to the Secretary to the Cabinet, Sir Gus O'Donnell. I said that I no longer wished to pursue the two matters that I had raised with the Department for Transport; my concern now was the broad question of Whitehall papers once they had left the working offices and before the National Archives had decided what to retain. I shall not bother the House with all the details, but the Cabinet Secretary said that departmental record-keeping was of a much higher standard than it used to be, that there had been several inquiries and that an interdepartmental group had looked at the problems of storing and archiving of private office records. As a result, in 2001, the previous Cabinet Secretary had given guidance to the Permanent Secretaries, and that was revised in 2004.
	That is where the matter rested, as Sir Gus said that the guidance would be looked at again during 2006-07, when the Cabinet Office would monitor how the departments had acted on their recent guidance. I am asking the Minister for a report of the outcome and what has been achieved. In particular, is every Permanent Secretary at least maintaining a good records system, or, if not, is there any sanction to ensure that the job is properly done? Could experts from the marvellous National Archives at Kew be asked to set up a model records system for every department?
	I turn to my second separate but related issue: official histories. Here, I declare an interest, wholly unremunerated, as a member of a group of three privy counsellors together with the noble Lord, Lord Healey, and the noble and learned Lord, Lord Howe of Aberavon, appointed by the then Prime Minister, Tony Blair, to approve the authors of official histories. Outside that responsibility or role, however, I have become interested in the planning and overall management of official histories.
	The first official history that I remember was Problems of Social Policy by R.M. Titmuss, published in 1950. Apart from being an account of wartime experience, it was a seminal text on poverty and deprivation and how to try to deal with it. Many years later, I was required to take a ministerial interest in a very different kind of official history, The SOE in France by M.R.D. Foot. There is a huge series of military histories of the Second World War and, since 1966, a series that is described as "History of peacetime events". I am much impressed by the number of volumes and the quality of those that I have read. I have read two recent volumes on the Falklands War and dipped into two volumes of separate series on early aspects of Britain's membership of the European Union. There has been a history of Britain and the Channel Tunnel, and a biography, Churchill's Man of Mystery: Desmond Morton and the World of Intelligence, which I have much enjoyed.
	That book, Churchill's Man of Mystery, has focused my mind on some wider policy questions about the official history programme: the timetable and shape of the programme, the publisher, the contracts with authors, and the marketing of the books. I am strongly in favour of the endeavour, but is it being done in the best way? Churchill's Man of Mystery seems to be a one-off: admirable, but not in a biographical series. It has a well designed jacket and tells a fascinating story. However, when I wanted to buy a copy, I found that it was not in my local book shop. When I eventually found it, the cost was £49, which is a ridiculous price and out of the range of many book buyers. It should have sold 5,000 to 6,000 copies or more at £25 to £30 and perhaps been serialised in a newspaper and considered for a television programme. Who made these decisions? How many copies have been sold? Were there book reviews in the major newspapers and magazines, as there should have been?
	There is a useful, explanatory Cabinet Office leaflet about the official history programme, but I am little uneasy about the detailed arrangements. This is not a debate that lends itself to all the questions, but, to use a fashionable phrase, I ask whether it is not time for an audit. I do not mean an audit by the tireless Audit Commission, but a fresh look at these matters by a distinguished historian, perhaps accompanied by a major commercial publisher. For a historian, I think of Sir Michael Howard, emeritus professor of modern history at Oxford, Sir Keith Thomas, former president of Corpus Christi College at Oxford, or, of a younger generation, Professor David Cannadine, who is already working on the 30-year rule review. As for a publisher, there is the noble Lord, Lord Evans of Temple Guiting, who was formerly chairman of Faber & Faber for many years.
	This is a moment when almost every former Cabinet Minister is expected to write a personal memoir or publish a political diary; and many special advisers and spin doctors also are on the publishing bandwagon. For this reason, it is important to safeguard the basic government material of the past and, in due course, to publish independent accounts of aspects and events of the past. I do not ask the Minister to comment in detail on both the matters that I have raised, but I hope that the Cabinet Office will carefully consider all my points.

Lord Bew: My Lords, I thank the noble Lord, Lord Rodgers of Quarry Bank, for giving the House the chance to discuss these important matters. I identify myself with his remarks about the history and policy project, which has already proved to be fruitful and interesting.
	The noble Lord offered two major themes for our consideration. The first relates to our current arrangements for the preservation of government archives. I think that many Members of your Lordships' House will have been worried by the case from the noble Lord's own ministerial days that he laid out before us. Matters may have improved in recent years, as he has been reassured. The Freedom of Information Act may have had the knock-on effect of encouraging better record management. The Lord Chancellor's code of practice under Section 46 is said to have led to an improved level of government record retention, although the noble Lord's example this evening did not encourage me too much in that respect.
	The Freedom of Information Act has undoubtedly had another impact: it has inevitably increased the pressure on our hard-pressed archivists. I am conscious particularly of the situation in the Public Record Office of Northern Ireland as Northern Ireland emerges from the Troubles. Under the Freedom of Information Act, it has become possible to make inquiries about difficult and contentious cases, which creates a labour for our archivists. They have done everything possible to maximise the release of material while using the device of redaction to preserve the health and safety of living persons. The Public Record Office of Northern Ireland does a remarkable job in preserving the collective memory of the Province, which is an essential part of the long-term healing process.
	At the heart of the debate is resource allocation. We must anticipate a lack of the sort of funding that would allow the absolutely satisfactory handling of government archives. At the moment, as the noble Lord, Lord Rodgers, said, the Government have a committee reviewing the working of the 30-year rule. It includes Paul Dacre, the editor of a very successful newspaper, and Professor David Cannadine, who is a very distinguished historian, as the noble Lord, Lord Rodgers, said. Given the special difficulties that relate to Northern Ireland, I am glad to say that it includes also Sir Joseph Pilling, a former Permanent Under-Secretary at the Northern Ireland Office. I should perhaps declare an interest to the extent that I served with Professor Cannadine on the committee of the Centre for Contemporary British History at the Institute of Historical Research in London.
	We live in an era of ever-increasing public demand for disclosure. These trends are irreversible. Recent court cases involving leaked documents are highly instructive in this respect. Even putting aside the issue of leaks, I say that we now put officially into the public domain material that a previous generation would have regarded as quite unthinkable. When I started graduate research in history at the University of Cambridge, it was impossible to obtain sensitive documents that related to security matters in Ireland in the 1870s and 1880s. At the time of the Bloody Sunday tribunal, we put into the public domain the most sensitive material relating to an incident in 1972—not 1872. That shows the extent to which we have changed in our attitudes. The committee that I mentioned will have to decide whether adequate funding is in place to ensure that any change of the 30-year rule to 25 or 20 years is not counterproductive, perhaps even leading to the loss of important documentation. There is no doubt that the change from the 50- to the 30-year rule in 1977 led to a degree of administrative chaos, and it is important that that should not be repeated.
	Professor Rodney Lowe of Bristol University, who is a great expert in this field, has argued that the early release of documents would allow officials to speak more easily truth unto power and thereby contribute to better government. That may be true, but it will also certainly and inevitably lead to greater embarrassment. Even under the existing 30-year arrangement, we have had some very near misses. If we move to 25 or 20 years, it is certain that embarrassments will take place. Perhaps I may explain what I mean. At the turn of this year, British Foreign Office papers from 1977 were released in the normal way under the 30-year rule. They contained considerable salty, unflattering comment on the Irish political class. When the documents were released, they caused considerable irritation in the Dublin newspapers, and considerable aggrieved comment was made. Let us imagine what would happen if the young Foreign Office official who wrote those documents was at that time the British ambassador in Dublin. Such considerations have to be borne in mind.
	These embarrassments aside, the pressure over time to move a 20- or a 25-year rule—it may not come from the committee, but it will happen over time—is likely to be irreversible and irresistible. There are good reasons for it, of which I shall give the House an example. In 2001, in the United States, the biography of Congressman Tip O'Neill was published by JA Farrell, the Washington correspondent of the Boston Globe. This is significant for our history, because it deals with the important matter of the decision of the noble Baroness, Lady Thatcher, on the Anglo-Irish agreement of 1985. Mr Farrell was able to access National Security Council archives, which showed the full Reagan/American side. Everyone accepts that that aspect was an important part of the noble Baroness's decision. We, however, will have to wait until 2016 before we know the other side. Such imbalances and ambiguities are in the end intolerable and will increase the pressure for a change to a 20-year or 25-year rule. Whether this committee acts is another matter, but, in time, the pressure will be hard to resist.
	However, one major and less controversial reform is open to the new committee. In 1958 the Public Record Office made an important and wise decision that the papers of Ministers' private offices were public records. It is almost amazing that until that time they were not. The new review has the option, as Professor Lowe has pointed out, of establishing as public records such papers as those of special advisers—increasingly important in recent years—the Whips office, hived-off agencies, and private agencies financed by taxpayers' money for delivering policy.
	The noble Lord, Lord Rodgers, has also directed our attention to the subject of our official histories. The first UK official history programme was established in 1908, exactly 100 years ago as a reaction to the perceived failings of the Boer War. Military history has played a large part in the enterprise, as the noble Lord said, although he mentioned also the important work of Richard Titmuss at the LSE. We have recently been reminded that Professor Arthur Marder had an enormous struggle to secure the release of official documents for his acclaimed multi-volume history of the Royal Navy in the First World War, published between 1960 and 1974.
	Today, the atmosphere is much more relaxed. The vetting of material is much less strict, and we are entirely justified in looking forward with some enthusiasm to the works recently commissioned by the Cabinet Office. I am particularly looking forward to the history of an important part of our intelligence services being carried out by a colleague in my own university, Professor Keith Jeffery. If, as seems likely and desirable, we are to see an extension of the Cabinet Office's official history programme, we need, as the noble Lord, Lord Rodgers, has urged, simultaneously a greater concern with the practicalities of publication. The taxpayer and the reading public deserve no less.

Lord McNally: My Lords, like the noble Lord, Lord Bew, my first duty is to thank my noble friend Lord Rodgers for initiating this debate. In the day-to-day hurly-burly of politics, how we preserve government archives and how we prepare official histories may not be the top of the agenda. But history does matter and my noble friend does us all a service by providing an opportunity for us to debate this topic tonight. As he told us, he has direct experience of the Official History Programme, serving as he does on the committee of distinguished privy counsellors who have oversight of the programme. Healey, Howe, Rogers—quite a formidable trio. I would like to be a fly on the wall at some of their meetings.
	I have had a lifelong love of history. I had the privilege of studying English social history at University College London under Professor Joel Hirschfield. I am still a subscriber to History Today and a devotee of the History Channel and the programmes of Professors Schama and Starkey on television. I am always suspicious of politicians who show no knowledge of or interest in history. As Winston Churchill once observed:
	"It is an error to believe that the world began when any particular party or statesman got into office. It has all been going on for quite a long time".
	And so it has. But we are in danger, if we are not careful, of neglecting the raw material of history. If we do, we will rely too much on diaries and instant memoirs, as has already been mentioned.
	I have to declare that I have never kept a diary and that I have no intention of publishing a memoir. I am not a great fan of diaries as an historical source. It is like asking a football player to report a football match he is playing in. I know from my limited experience of writing a diary for The House Magazine that you become a kind of servant to the diary. The need to seem central and relevant to events makes the diarist an uncertain witness. On the other side of the fence, the idea that one or more colleagues may be scurrying home after a meeting to record their version of events cannot lend itself to free and frank discussion or great mutual confidence. As has been mentioned, we now also have the "reductio and absurdum" of the process with the publication of Mr Alastair Campbell's diaries, which, as we know, are the expurgated version because the details of the relationship between Mr Blair and Mr Brown are too lurid for contemporary eyes.
	Of course official histories have their drawbacks, too. They always live in the shadow of being compared with Winston Smith plying his trade doctoring history in the Ministry of Truth. Even if we do not view them as part of a 1984 nightmare, we have to take on board the views of Barry Coward, president of the Historical Association, who said:
	"Official histories are a bad thing because they can be used for establishing government purposes and can be re-invented to support the official Establishment".
	He goes on to warn:
	"History should not be used as a tool of Government".
	Such a warning should be taken on board. We do not want establishment history written by establishment historians. However, the official programme has set in train a programme of scholarship. It will not be the last word, but it will be invaluable to future historians. Jonathan Pepler, chair of the National Council on Archives, said:
	"NCA would ... want to put on record its appreciation of the quality of recent official histories. One of the best examples of these being last year's, "The official history of Britain and the Channel Tunnel", by Dr Terry Gourvish".
	In reality, what we are discussing tonight is another aspect of open government. It goes hand in hand with an effective Freedom of Information Act and the ending of the culture of secrecy in Whitehall. That is why it is important that policy on freedom of information and on archives and records should be a seamless garment. I have visited the National Archives at Kew and was very impressed with what I saw. But I am only an interested amateur. So let me put on record the view of Professor Peter Hennessey of Queen Mary college, London, who believes that it is the best national archive in the world. So the question is: how do we preserve this great national treasure? And I am referring not to Professor Hennessy but to the National Archives.
	First, I believe that the programme of official histories should be encouraged and maintained. And perhaps I may make a suggestion, as it has been mentioned already. I should like to see a study of the history and role of special and political advisers in Whitehall. I was once told that such implants go back at least as far as Lloyd George's time. A proper study would expose many of the myths and shibboleths about their role in governance.
	Secondly, there is a need to ensure that the work and efficiency of the National Archives at Kew is not weakened or undermined by the extra calls made by implementing the Freedom of Information Act. Can the Minister assure the House that there is no "robbing Peter to pay Paul" switch of resources and that Kew will not suffer such cuts to service freedom of information demands?
	Thirdly, we all look forward to the review of the 30-year rule under the chairmanship of Paul Dacre. I must confess that when I first heard that Mr Dacre had been asked to undertake this study, I thought it was like asking Jack the Ripper to undertake a review of street lighting. Nevertheless we look forward to the review, and I note what the Prime Minister said when announcing it. He stated:
	"It is an irony that the information that can be made available on requests on current events and current decisions is still withheld as a matter of course for similar events and similar decisions that happened 20 or 25 years ago".
	There was a good example of that last weekend when it was reported that an apparent tiff between Sir Anthony Eden and Churchill about the timing of Churchill's retirement had been kept secret for 50 years. It seems extraordinary that that should be so. A number of the embargos on the workings of government, the security services and royalty belong to a different age.
	Publication can create the danger of embarrassment, as the noble Lord, Lord Bew, said. The 30-year rule recently coughed up a memo that I sent to Jim Callaghan in 1977 advising him strongly not to see the troublesome Back-Bench Member for Hull, Mr John Prescott. By the time this all surfaced, Mr Prescott was Deputy Prime Minister. But I am absolutely sure that it did not change his view of me one jot to know that 30 years ago I had been doing that.
	We are all living longer, the Freedom of Information Act is becoming a reality of open government, and we will all have to come to terms with accepting the consequences of our actions when in government. However, as the Hutton and Butler reports have shown, sofa government—where major decisions are taken without a paper trail—and the increasing use of new communication technologies mean that the archives may not always tell the whole story. It is 30 years since the then Prime Minister, Jim Callaghan, asked his predecessor, Harold Wilson, for a review of record-keeping in Whitehall. In terms of how government is carried on and records kept, that was another age. I should therefore like to see, once we have the Dacre report and its recommendations, a more broad-based review to follow up the Wilson committee of 30 years ago. Such a committee could also look at the need and capability of preserving voice and visual records as well as e-mail traffic.
	As I said, history is important. It is important for all our citizens to know who we are and the events that have made us what we are. In my teens I was stimulated by the Granada programme hosted by Brian Inglis called "All Our Yesterdays". I still think that it is a key part of citizenship that we understand where we are and what our history is. It is key that we encourage both record-keeping and openness of government. My noble friend Lord Rodgers has stimulated a very worthwhile debate. I say to the noble Lord, Lord Bew, that I would love to come to a full hour-long lecture by him on the subject. But I will leave that matter for the moment.

Lord Luke: My Lords, I am most grateful to the noble Lord, Lord Rodgers of Quarry Bank, for introducing this short but most useful debate. All of us ought to be interested in our forebears and history. I am therefore most disappointed in the small number of noble Lords present, particularly on my own Bench. As an amateur historian, I have always been fascinated by the parliamentary archive and in the preservation generally of documents, whether ancient or modern. The Parliamentary Archives, together with the National Archives, have custody of over 500 years of records, on parchment, paper, film, tape and photographic reproductions. House of Lords records are held largely in the Victoria Tower. It is some years since I last paid a visit but I was fascinated. I have been promised another visit and shall be doing that.
	Most early House of Commons records were destroyed in the devastating fire of 1834. Archives are kept as records of Parliament for various obvious reasons: as a legal and evidential record of Parliament's proceedings and work since the late 15th century, to help us to learn from history. But do we learn? Archives are kept to help the general public to learn about how their predecessors and ancestors lived and their achievements; to help historians, both professional and amateur, to prepare official histories, biographies and related activities and to carry out research.
	Parliamentary Archives is one of several offices that constitute the Clerk of the Parliaments' department. The House of Lords Information Committee has oversight of the work of the archive. The archive, it goes without saying, provides an updated catalogue of all the other archives, and is still in the process of digitalising them and making sure that they are available online. It helps the public to inspect and copy records and to answer inquiries. It makes sure that the general public are aware of the existence of the archive and how they can use it for research and lifelong learning. It helps to provide that vital link between Parliament and people. It provides data for IT and encourages the use of that IT. It also helps the public and parliamentarians to use that resource. It has to ensure that records that are worthy of preservation—who decides if they are worthy?—are selected for the archive. It obtains and, if necessary, acquires other records deemed to contribute significantly to understanding the history and workings of Parliament.
	Some archives have naturally deteriorated over the years and need conservation and then preservation from future damage. Clearly an efficient department carries out this work. I have read the archive's latest annual report, the publication date of which does not appear to be given. It is an interesting document, though I personally find the style and language in which it is written difficult to follow. It is clearly not written with the general public in mind. Perhaps something derived from such a document should be produced annually so that the general public can be informed about what is happening.
	During my researches I discovered that Hansard has been carefully preserved all through the years; that Acts of Parliament from the House of Lords are, by and large, in the Victoria Tower, as are many Acts originating in the House of Commons; that pamphlets and newspaper articles relevant to government and Parliament have been preserved; that the original warrant for the execution—or, as I prefer to call it, murder—of Charles I is kept, with other priceless important documents, in a specially air-conditioned room; and that there is regular and frequent communication between the House of Lords Library, the House of Commons Library and other libraries, the historical record office, the National Archives and many other depositories of historic documents.
	I have learnt a lot, and I hope absorbed a great deal, during the preparation for this debate. A great deal of dedicated work is carried out by the department. Here I must thank Dr Hallam Smith for her help and say how much I enjoyed her obvious enthusiasm. Archives are essential parts of our lives, not least because they bring a sense of immediacy to long-forgotten history—lest we forget.

Lord Davies of Oldham: My Lords, the whole House is grateful to the noble Lord, Lord Rodgers, for introducing such an interesting debate. It deals with an area that I cannot recall being voiced in the House before. This debate is therefore long overdue because we need to address issues relating to both archives and official histories. I hope that I shall be able to indicate that constructive work is being done. However, first, I want to put on record my gratitude for the helpful and interesting suggestions that have been made this evening, as they aid the Government's thinking in this area.
	I also thank the noble Lord, Lord Rodgers, for his tribute to Tessa Stirling and the work that she has done in this area over many years. The honour that she obtained was well deserved, and there is no doubt that the country owes her a great debt of gratitude for that work.
	A great deal of work is under way to ensure that the Government capture and maintain vital information that is generated. We recognise that government information is unique and an extremely valuable asset where robust information management is vital.
	It may help if I outline the arrangements that we have in place at the moment and indicate the areas where we need to think constructively about the future. As the official government archive for England, Wales and the United Kingdom, National Archives houses records from across central government that are mostly over 30 years old. There is no legal obligation on departments to transfer records to National Archives if they are under 30 years old. I want to reassure the noble Lord about his search of the Ministry of Transport records some time ago. Lessons have been learnt from that period and the care with which government departments maintain their records is at a higher standard than he may have witnessed when he examined the position some time ago.
	The House will be aware—the noble Lord, Lord McNally, referred to this—that the Prime Minister announced on 25 October last year that he had appointed an independent team led by Paul Dacre, the editor-in-chief of Associated Newspapers Ltd and a member of the Press Complaints Commission, to review when government records are made available to the public. The review is focusing on whether, in the light of the Freedom of Information Act and other considerations, there should be any changes to the 30-year rule—the time-span under which most public records are transferred to National Archives and made available to the public. The noble Lord, Lord Bew, identified areas where the 30-year rule needs to be looked at afresh. First, if one part of a story is released elsewhere somewhat earlier than the present 30 years, obvious questions are raised about impartial information being in the public domain.
	Secondly, with careers lasting longer and people living longer, the 30-year limit raises significant issues about individuals' sensitivity when information is released for which they are either directly responsible or identified in a particular role. Therefore, these matters need to be looked at afresh and I assure the House that that is what the review is intended to do. Although the noble Lord, Lord McNally, ended by giving an encomium to Paul Dacre, I think he recognises that, with his background in the newspaper industry, he has at least a real concern for the immediacy and relevance of information, and that makes him an excellent appointment to the role.
	Within each department, a departmental record officer is responsible for the care of all the records, which in recent years has inevitably included an increasing number of electronic records. Each departmental record officer's work on public records is carried out under the guidance and supervision of expert staff at National Archives. The National Archives team takes a strategic role and supports the department in its operational work. At a strategic level, National Archives agrees with each department which records need to be kept for long-term preservation and access via a published document—the operational selection policy. At an operational level, it advises and helps the departmental record officers in selecting records for permanent preservation at National Archives in line with this policy, in creating search aids to the records, and in ensuring that the records are prepared and transferred to the correct archival standard. Therefore, I hope that the noble Lord will appreciate the extent to which intensive rigour is applied to the processing of departmental records and the role which National Archives plays in supervising that work.
	As the noble Lord, Lord Bew, indicated, the Freedom of Information Act has made the Government more accountable than ever for the proper management of information. Section 46 of the Act requires the Lord Chancellor to issue a code of practice on the management of records. This was published in November 2002 and came into effect on 1 January 2005. It is in two parts. Part 1 covers record management and part 2 covers the review and transfer of public records. The code applies to all central government departments and public record bodies. That is an important derivative from the Freedom of Information Act which conditions, in a way vastly different from in past decades, the ways in which departments now and in the future will need to address themselves to the question of records. Last year, National Archives launched information management assessments designed to raise the capability and awareness of the Government's management of their information and records. A department's compliance with the code is assessed within the overall departmental information management standards. The initial assessments completed last year have resulted in strong recommendations and actions for improving and supporting how departments manage their records and information. They have also enhanced the awareness of the importance of managing information and records across these departments.
	National Archives is also supporting the Government to help capture and maintain vital information for the development of guidance on the tools for proper information management. With the increasing number of electronic records, for example, National Archives is taking forward a pan-government shared services project, the digital continuity project, which aims to deliver a shared service across government to ensure the survival and accessibility of digital information. I hope that, in this section, I have been able to demonstrate to the noble Lord, with his well founded anxieties, that the arrangements are in place for capturing and maintaining government archives—and perhaps more importantly, that the initiatives being introduced will ensure that we guarantee the survival of today's information for tomorrow.
	I turn to the noble Lord's second consideration, the Government's official history programme. I confess that I have a great deal in common with the noble Lord, Lord McNally. I too studied history at University College under Professor Joel Hurstfield. I too played in the parliamentary football team. The only difference between us is that I have continued to vote Labour and the noble Lord, Lord McNally, has gone a different route. But, in every other respect, he knows only too well that I understand and follow his great interest in these matters. I am very appreciative of the fact that he has addressed the question of the official histories this evening, as did the noble Lord, Lord Rodgers.
	We recognise that the present arrangements with the Whitehall History Publishing group—which have been in place since 1999 and the contract runs till 2010—are with the Routledge arm of Taylor & Francis. In the past it has proved both efficient and cost effective to have all the histories published this way. The contract requires no expenditure by the partners of the Whitehall histories group and they receive a proportion of the royalties from sales to help offset the costs. However, I bear in mind what the noble Lord, Lord Rodgers, said and I think he was buttressed by the noble Lord, Lord McNally—I am not so sure that the noble Lord, Lord Bew, did not also cast a glance in this direction—that the official histories perhaps need to be marketed more successfully.
	I cannot give much help as far as my noble friend Lord Evans of Temple Guiting is concerned. The noble Lord, Lord McNally, might have just forgotten that he has moved out of publishing and into banking. We all know what has happened to banking since the noble Lord, Lord Evans, has appeared in that quarter. Suffice it to say, we should certainly look at marketing. There is no doubt that we want the official histories to be written to the very highest standards and they will be inevitably costly. History books are costly, as all Members of the House will know. It is also the case that if we are to see a wider public enjoy a set of books, we must be careful to avoid prohibitive prices. The marketing aspect of the official histories may need to be looked at with some constructive care.
	I would like to clarify the difference between the official history programme, which is run from within the Cabinet Office, and the internal histories, which are the work of other departments, notably the Foreign and Commonwealth Office and the Ministry of Defence. The Cabinet Office is responsible for managing all the official histories and the official history programme, but both the Ministry of Defence and the Foreign and Commonwealth Office, as noble Lords will know, publish histories which relate to work of their departments.
	I am all too well aware that my responses to this debate are bound to be inadequate against the background of the highly specialised expertise which has been brought to the debate, but I want to answer certain questions before I conclude. I was very grateful to the noble Lord, Lord Luke, for introducing into the debate something I had not anticipated, and ought to have done knowing his interest in this area. It was very useful indeed to have a relationship to the archives of Parliament and the work that is done here. They are also quite unique and it is important that they are valued too. He was emphatic about the good work that is being done in this area, but of course no one should rest on their laurels on these issues.
	I say in passing that about the only feature of my education in history at University College that paid direct and immediate dividends related to the fact that, when I became secretary of the Parliamentary Labour Party in 1979, I discovered that every single record of the history of the PLP, going right through the resignation of Oswald Mosley, the election of Clynes in 1922 and the General Strike, was handwritten on foolscap paper pushed into loose-leaf folders. I managed to get that put into some permanent position on microfiche; the records are now in the Museum of Labour History in Manchester. That just shows that, even with the most redundant of students, Professor Hurstfield could strike a chord at least in one respect to the benefit of historians.
	The noble Lord, Lord Rodgers, indicated that he thought that the official histories were at times a somewhat odd mixture. As they were drawn up from suggestions across Whitehall, there will be a certain idiosyncrasy to them. The whole question of which topics should be covered is a thorny one. Suffice it to say that steps are being taken to tap into external advice as well. After all, the histories are written by outside historians—by definition, academic historians—so it is only right that we should take greater steps to take their advice on the compilation of the histories.
	I have come to the end of my time before answering every question in the detail that I would have wished. I assure the noble Lord, Lord Rodgers, that I will write to him where I have failed to answer his specific questions. On the more general issues that have been raised this evening, all noble Lords have made it clear that we need to address ourselves with considerable care both to the archives and to the official histories. I assure the House that constructive concepts are in place. There is an openness to learn from others on how we can improve on past performance. I am grateful to the noble Lord, Lord Rodgers, for giving us the opportunity to air these issues this evening.

Lord Bassam of Brighton: My Lords, I beg to move that the House do now adjourn during pleasure until 8.33 pm.

Moved accordingly, and, on Question, Motion agreed to.
	[The Sitting was suspended from 8.21 to 8.33 pm.]

Criminal Justice and Immigration Bill

House again in Committee on Schedule 1.

Lord Avebury: moved Amendment No. 19:
	Schedule 1, page 159, line 26, after "specified" insert "and designated by the Secretary of State on the advice of the President of the Royal College of Physicians as"

Lord Avebury: First, I express my deep gratitude to the noble Lord, Lord Kingsland, for his undeserved compliments about the wording of the amendment, which is not really a finished product, but more of a probing amendment to try to elicit some information from the Minister about what will be provided by way of intoxicating substance treatment requirements, and how the courts will decide on the appropriate institution in which a particular offender will be treated. No one would contest the assertion that alcohol is an important factor in the aetiology of crime, and because of the catastrophic rise in drinking by young people, many are committing offences that bring them before the courts.
	As an indication of the extent of the problem: in 2005-06, 5,280 children under the age of 16 were admitted to hospital for alcohol-related reasons; in 2006-07 that figure had risen to 6,707. We agree that the intoxicating substance treatment retirement, which can be imposed in connection with a youth rehabilitation order, is a necessary addition to Schedule 1. But we are concerned about whether the facilities to deliver this treatment will be available; whether they will be professionally validated and whether the courts will have the expertise to make decisions on detox and rehabilitation, which may well require different facilities.
	The National Treatment Agency for Substance Misuse has published a review of the effectiveness of treatment for alcohol problems, and the noble Baroness, Lady Richardson, in her introduction, says that there is compelling evidence for investment in alcohol treatment, but that it is essential that it should be directed towards interventions of proven effectiveness. Last October the NTA told the Observer that the number of young people in contact with alcohol treatment agencies rose from 5,200 in 2005-06 to 6,707 the following year, so there is undoubtedly a growing demand. Yet there seems to be no strategy to provide the facilities that are needed; indeed, establishments are being closed. I was told that Phoenix Futures, for instance, is just about to close one of its residential establishments—or has just about done so. Nor does there seem to be any authority to validate the treatment to be provided under the orders. The Commission for Social Care Inspection, which registers residential establishments, has no expertise on the quality of the treatment offered.
	Presumably, the treatment specified in the order will sometimes, if not generally, be residential, but those facilities are few and far between. In the light of the debate on the previous amendment, which the Minister resisted because it applied only in cases where a young person would be compelled to leave their home, I would be grateful if, when replying to this amendment, the Minister would say something about whether these alcohol treatments would invariably be non-residential. If not, the same arguments apply as they did to the previous amendment.
	I beg leave to doubt whether, in every case, the treatment of severe alcohol problems can be done on a non-residential basis. In the provision of those facilities, there is inadequate co-ordination between PCTs and local authorities. In the new NHS operational plan for 2008-09 to 2010-11, there is nothing specific about alcohol treatment. If the orders are to work, they need to be embedded in a proper strategic framework with adequate funding and with professional validation of the facilities to be developed. I beg to move.

Lord Ramsbotham: I support the very important amendment of the noble Lord, Lord Avebury, which fleshes out something that was already there in an entirely helpful way. I base that on my experience visiting young offenders. One was horrified at how many of them had alcohol problems recorded as being part of the problem and yet alcohol treatment was not part of the treatment that they were getting.
	It has always struck me as unfortunate that there seems to be a difference in the content between what is done during community sentences and what is done in custody. There are many things that could be the same. There is no reason why education, work training or drug treatment should not be part of a community sentence. There is certainly no reason why alcohol treatment should not be part of such a sentence. Therefore, I hope that the provisions that are so ably set out by the noble Lord are included in requirements both in custody and in this part of the Bill, which relates to what should be done in community for them, because it is a scourge that badly needs more attention.

The Earl of Onslow: Another thing that we ought to take into account is that for some quite extraordinary reason there is a culture of deliberately going out to get what is called—and I think I can say this at this time of night—"rat-arsed". That is a very long and old English tradition. The Venerable Bede complained his monks getting too drunk. It is a very serious problem and it ought to be looked at against the drinking culture that the young of this country have had historically for thousands of years.

The Earl of Listowel: I will briefly add one comment on the numbers of young women who become pregnant as teenagers, and who are particularly likely to be within that group. The noble Lord, Lord Mitchell, has drawn attention to the dangers of women drinking in the early stages of their pregnancy. Having an alcoholic as a parent, or two alcoholics as parents, raises child protection concerns and often when the NSPCC looks into child abuse or maltreatment issues there are one or two alcoholic parents involved. If we can get in effectively early on, it would make so much difference to the lives of some of our most vulnerable children. Therefore, I welcome what is behind the amendment and look forward to the Minister's response.

Lord Kingsland: The British Crime Survey states that alcohol is a factor in no less than 47 per cent of violent crime. That breaks down to 45 per cent of incidents of domestic violence, 58 per cent of incidents of stranger violence and 51 per cent of incidents of acquaintance violence. It is central to violent offending.
	All that the amendments of the noble Lord, Lord Avebury, are seeking to do is to put the treatment of alcohol-driven offences by young offenders on the same basis as alcohol-driven offences by adults.
	A recent survey suggests that alcohol treatment funding made up only 6 per cent of the funding that drug treatment services receive. If that is an accurate statistic, it is an astonishing one. We know that drugs play an important role, particularly in theft and burglary. Nevertheless, it is violent crime that is most disturbing the general public—and, indeed, the Government—and it is plain that alcohol is a major cause.
	The amendments will involve resources, but I think they will be resources exceedingly well spent to try and contain that problem. I will be most interested to hear the Government's response.

Lord Bach: We are grateful to the noble Lord, Lord Avebury, for raising what is undoubtedly a very serious issue which represents a considerable problem for the justice system in England and Wales. What the noble Earl, Lord Listowel, said about getting in early is obviously right as well.
	As to whether these treatments take place in residential or non-residential settings, I do not think it will surprise the noble Lord to hear that in the great majority of cases, alcohol treatment requirements are discharged in a non-residential setting. Treatment is mostly provided on a voluntary basis. As to whether substance misuse treatment is currently available for young offenders, the answer is yes. Since 2004-05, all youth offending teams have been screening young offenders for substance misuse, ensuring that those with identified need receive assessment and the appropriate intervention. Interventions can be different—they include prevention or early intervention, which comes under what is described as tier 2, or specialist treatment under tiers 3 and 4. The majority of young offenders receiving treatment for substance misuse—that phrase includes alcohol misuse, because the Bill makes it clear that the two are treated under the heading of substance misuse—access services on a voluntary basis via provision commissioned locally, and I shall say something about resources before I sit down. However, although drug treatment and testing is available as a court order, the court does not currently have power to order treatment for alcohol or other substance misuse such as glue, aerosols and petrol. The new requirement will plug this gap.
	Let me help the Committee by giving some figures. In 2004-05, 12,885 young offenders received an assessment, 7,672 received the early intervention under tier 2, and 2,973 received specialist treatment under tiers 3 and 4. By 2006-07, 13,373 young offenders were receiving assessment, an increase of about 500; 7,915 were receiving intervention, an increase of 250; and 4,823 were receiving the more specialist treatment. Those figures are of interest to the Committee, and there are others as well.

The Earl of Onslow: Will the noble Lord let me know how many of those came in the same category of the 17 year-old who was arrested for being drunk and disorderly and was not allowed legal representation, which the noble Lord, Lord Hunt, gave as an example under the previous amendment?

Lord Bach: Much as I would like to promise the noble Earl that I can find those figures for him within a reasonable time, I am not sure that I can. However, I will make inquiries.
	Amendment No. 19 would significantly narrow who could direct this treatment by making them effectively subject to approval by the Royal College of Physicians. Amendment No. 20 in the name of the noble Lord, Lord Avebury, would place a duty on the Secretary of State to maintain a central list of facilities offering this treatment to make such a list available to the courts. We do not believe that either of the amendments are appropriate, and I shall explain why.
	We believe that restricting those who can direct intoxicating substance treatment only to those persons who have been approved by the Royal College of Physicians is, frankly, not practical. Such a restriction does not reflect entirely the context in which such treatment is delivered. In drafting the requirement in the Bill, we have worked closely with both the Department of Health and the National Treatment Agency. Their advice is that dependency on intoxicating substances can be resolved in a treatment intervention, as it is called, where the main worker does not have to be a medical practitioner.
	Such a narrowly defined treatment provider would not allow the sort of flexibility required in the provision of this treatment. In some cases, frankly, the people providing the treatment will not have formal qualifications. For example, there may be instances where the treatment could be delivered by a person who has the necessary experience through their own previous experience of addiction. Everyone knows that those who have previous experience of wrongdoing or addiction are sometimes the very best at winning others away from addiction. For young people, such personal experience can provide—and this is my point—some of the most powerful testimony on the dangers of addiction to substances. They are not, I am afraid, liable to approval by the Royal College of Physicians.

Lord Ramsbotham: I listened to that explanation with great interest and I absolutely agree. The same is true for drug workers, but is it not better when they are under the supervision of somebody who is qualified to see that what they are doing is part of a structured regime?

Lord Bach: I am not sure that I agree that they are necessarily better under someone who, for example, was approved by the Royal College of Physicians, but there clearly has to be a supervisory structure. It is very important that all people in that structure are of high quality, but we do not want to limit those people to any particular qualification.
	The current wording of the requirement emphasises that the treatment worker must have necessary qualifications or experience to direct treatment. This offers sufficient safeguards to ensure that treatment is directed by someone suitable for the role. However, I go back to the flexibility that is vital to ensure that a young person receives the sort of treatment that is tailored to their individual needs and circumstances. In case there are any doubting voices still around, this wording is consistent with the drug treatment requirement in paragraph 22 of Schedule 1 to the Bill, and the adult drug rehabilitation requirement in Section 209 of the Criminal Justice Act 2003. It is also endorsed by both the Department of Health and the National Treatment Agency.
	I turn to Amendment No. 20. The proposed requirement on the Secretary of State to maintain a central list of facilities does not reflect the fundamentally decentralised arrangements for the delivery and funding of this treatment. Youth offending teams are referring young people to these services already. Indeed, the majority of young offenders who receive treatment for substance misuse access those services voluntarily. We anticipate that very few young people who have failed to engage with such treatment voluntarily will require a court order. Both funding and provision are devolved locally. Young people's specialist substance misuse treatment services are currently funded via the National Treatment Agency. Provision is commissioned locally and youth offending teams are the largest commissioner of these services. It is the role of the local youth offending team to identify local facilities and providers, and to establish whether the services provided are appropriate for the young person subject to the order.
	Information about suitable treatment services and facilities for a young person will be provided to the court as part of the pre-sentence report process, on which sentencing decisions will be made. The court will, therefore, receive the necessary information about the facilities being recommended through this process. A centrally held list of facilities will not add much value—perhaps a little, but not much. Indeed, a list would be unworkable and difficult to maintain to an appropriate level of accuracy. Because the treatment services are delivered locally, the maintenance of a central list would be overly bureaucratic and liable to be out of date quickly as treatment providers change over time. We believe that we have provided an appropriate framework in the Bill to ensure the effective delivery of the intoxicating substance treatment requirement and we accept absolutely the unanimous view of the committee that this is an important area.
	I said that I would say a little more about resources. Alcohol treatment and general programmes to counter the misuse by young offenders that we are talking about in these amendments are included in general youth offending team work on substance misuse. Funding is received through the young people's substance misuse grant and through local drug action teams' and children's services. Youth offending teams will normally engage young people voluntarily in substance misuse treatment without the need to resort to a specific court order. Our view is that very few young people will ever need alcohol or other substance misuse treatment as a requirement within a youth rehabilitation order.
	I hope that that answers the various issues that have been raised. The noble Lord, Lord Kingsland, has indicated his concern as to whether what we are proposing will require further funding. Not all YOTs are funded to provide substance misuse workers to support screening, early intervention and referral to specialist services. As I have said, young people's specialist substance misuse treatment services are currently funded via the National Treatment Agency's pooled treatment budget which is included in the young people's substance misuse partnership grant. Local children's and young people's partnerships are expected to play their part in ensuring that children and young people can access the full range of treatment modalities as outlined in the National Treatment Agency guidance. In practice, young people subject to this requirement will also be accessing services provided by this funding arrangement.
	I invite the noble Lord, Lord Avebury, to withdraw his amendment.

The Earl of Onslow: Do I understand the noble Lord right in saying that it would be very unusual for a substance misuse order to be made under a youth rehabilitation order? Surely if someone is getting into trouble because they are slightly inebriated, and that is part of the cause of the violence or robbery, is it not something which must be addressed? Have I misunderstood the noble Lord, or has he said that this would not be part of a youth rehabilitation order? If so, it seems to be upside down.

Lord Bach: The point we are trying to make is that a large amount of this treatment goes on voluntarily. The vast majority will continue to be voluntary on the basis that young people are picked up before they have committed the type of offence which requires a youth rehabilitation order and so will be dealt with voluntarily. When this provision becomes part of the Act in due course, there will be cases when it is appropriate that a youth rehabilitation order should have such a direction in it, but our belief is that that will not arise very often.

The Earl of Onslow: I feel that I need to go on worrying at this point. If a young person is drunk when they commit an offence, it would be crazy not to make it compulsory for someone to try to get it into that person's pea-sized brain that getting sloshed causes trouble. It is something that that person should be educated about . This is what I find so odd. The idea that these young people are going to volunteer to be taught about alcohol seems slightly crazy.

Lord Thomas of Gresford: The noble Lord said that the Government are providing an effective framework for dealing with this problem. Listening to the Minister, I have the impression that there is no framework at all. Who can set up these facilities? It would appear that any ex-alcoholic or even current alcoholic can do so. How is the court to know what places are available? Will the youth offending team go around trying to find a place with someone offering these services and include it in the pre-sentence report? How is it to be funded? We are not sure. It certainly is not a part of the youth offending team's budget apparently and will come from somewhere else. The Minister is suggesting a ramshackle structure for the carrying out of these orders, not the tightly controlled suggestion made by my noble friend.
	Furthermore, it is a little excessive if the criticism is that my noble friend is calling for a centralised list. As I understand the amendment, he is calling for the Secretary of State to make sure that there is a list, but it will not have to be centralised in London and made available nationally. It can be devolved via the Secretary of State to the local area so that it is available to the magistrates' court faced with a sentencing problem. I would have thought the Government would have tried to get this into a better framework than that which has been suggested so far.

Lord Kingsland: The Government will not be surprised to hear that I share the concerns of my noble friend Lord Onslow. If nearly 50 per cent of all violent crime is fuelled by alcohol, then at best the Government's reaction to this amendment is complacent; at worst it is inexplicable.

Lord Bach: Let me try again. I fear the noble Lord, Lord Thomas, took some pleasure in exaggerating what I said. The idea of alcoholics supervising those under treatment is ridiculous. It was not one that I talked about so I am very surprised at someone as experienced as he putting those words into my mouth. I wonder why he did it.

Lord Thomas of Gresford: I am sorry if I hurt the Minister by exaggerating his point a little. He certainly referred to ex-alcoholics running these courses. As far as I can see, there is to be no accreditation of these people and so it could be an ex-alcoholic who slips a little from time to time.

Lord Bach: That contribution and the one before are not in keeping with the spirit of the Committee so far. Whether or not it is because it is after dinner I am not certain. We all relax a little after dinner. But it is not worthy of the noble Lord to suggest that that is what we said.
	I think the Committee agreed that it was a good thing that those who were reformed should be among those who helped and guided those who were now in trouble because they could teach them more. I think that was the point I made. If the noble Lord thinks that I was saying something different, I do not think I can persuade him otherwise. But that is meant to be what rehabilitation is all about.
	Let me try again. It is worth considering the treatment requirements attached to the YRO within this context: they will be subject to the same considerations on availability and suitability as are applicable outside of the criminal justice system. However—and this is the important point—in practice, most young offenders with identified drug substance misuse or mental health treatment needs will receive treatment on a voluntary basis, supported by appropriate workers in youth offending teams. We expect that that treatment of these needs would be included as a part of a court order only when a young person had previously failed to engage with treatment services and when drug substance misuse or mental health had been identified as a factor in offending behaviour—for instance, committing crime in order to support drug substance use or while under the influence of drugs or intoxicating substances. Consequently the expectation is that there will only ever be a small number of young people who will require a court order to undertake treatment. We are confident that the availability of treatment should be sufficient to cater for those young people.
	Youth offending teams will know of providers in local areas and supervise any treatment. I have said more than once that the funding is provided by the National Treatment Agency. If alcohol addiction is the cause of the offence for which the YRO is given, the court can give that requirement. The fact is that YOTs are giving alcohol treatment without recourse to a court order as part of their general work on substance misuse. All YOTs are funded to provide substance misuse workers and we believe, as does the Youth Justice Board, that only very few require court orders for substance treatment. If they require orders they will be given them, but just because an offence is committed by someone in drink, it does not follow automatically that the best order to make for them is one that involves treatment for drinking too much. There is a whole sequence of other orders that may be more suitable. For the noble Earl, who knows better than this, to suggest that everyone who is drunk and is brought before the court, even if they have committed an offence of violence, should necessarily get one of these orders attached to a YRO is frankly absurd.

The Earl of Onslow: The Minister is getting ratty. I am saying, and I think this is blindingly obvious, that alcohol, as my noble friend says, is part of the problem. People must therefore be told that and must, if possible, be helped. I come from a long line of people who have died of drink, so I know how difficult it is—

Lord Bach: The noble Lord, Lord Thomas should beware.

The Earl of Onslow: All I am saying is that this is very serious and the Government ought not to rely on the voluntary position.

Lord Thomas of Gresford: Before we get to the serious part, a slur has been made about my contribution after dinner. It is fortunate for me that, if the Minister would like to express that outside the Chamber, he will find eight noble Lords who are sitting in the Chamber at the moment who had dinner with me and who know that I had a small glass of wine.

Lord Bach: Absolutely no slur on the noble Lord was intended. He seems able to give out some stick but not really able to take it. I know him well and his contributions are always extremely welcome. My remark was not meant seriously, and I apologise if it caused him offence.

Lord Ramsbotham: I have listened to a lot of this with some incredulity. It is a fact that alcohol is behind a lot of young people's offences—that is proven. It is also a fact that there is not enough alcohol treatment available for them. To suggest that the solution should be voluntary is therefore quite absurd. They will not volunteer for treatment because they do not admit that anything is wrong with them. It is incumbent on the Government to go away and think seriously about this problem; it will not go away unless something firm is done, rather than leaving it on a voluntary basis.

The Earl of Listowel: Before the Minister responds, may I just follow that point and put a supplementary question myself? It would be interesting to be reassured that where a pattern of drinking is associated with the behaviour, there is appropriate intervention. One would wish to know how effective obligatory interventions are. Many of us were surprised how effective parenting orders were, for instance, because they obliged parents to take these classes, although for alcoholism it may work quite differently.
	On the separate matter of supervision—I know it is getting late, but to my mind this is a crucial matter that often gets overlooked—I take the point that a former alcoholic doing such work can often provide a good intervention, but they would need to be well supervised when doing that because they themselves are vulnerable. I would be grateful if the Minister could provide a bit more information about what is expected in terms of supervision. It may be that within the National Treatment Agency that is clear in any case.

Lord Bach: I shall make sure that that is done. I think that there is a misunderstanding about the voluntary aspect of the requirement. Many young people take up the scheme voluntarily. The figure of 13,000 which I gave earlier was for those who had done so. Many of them do it voluntarily; many, it is to be hoped, are cured by doing it. The Bill will make provision for part of an order to contain a treatment direction as well, but it is not right to laugh out of court the voluntary nature of some of the work that is being done on the people to whom we are referring. There are other directions that can be imposed under the order. It may be expected of people that they will go along voluntarily to have their alcoholism, or whatever their condition is, cured. There may therefore have been a misunderstanding.

Baroness Miller of Chilthorne Domer: Knowing the Minister as well as I do, and hearing his response to my noble friend's sensible suggestion, I am surprised for two reasons. The first is that the Government seem to be being inconsistent. They say that the voluntary nature of the scheme works, yet in many other parts of the Bill, and in the clauses on prostitution in which I shall take particular interest, there is no question of the requirements being voluntary—indeed, prostitutes face detention if they do not comply with their orders. But for one of the biggest social ills facing the country, that of alcoholism in young people and the consumption of alcohol, voluntary treatment is OK. The second reason is that the Minister gave an insufficient assurance in his reply that either good guidance or a framework will be provided. That is not consistent with the quality of reply that we normally expect from him

Lord Judd: I was not going to intervene on the amendment, but for the first time in a long time, I was not entirely convinced by what the noble Lord, Lord Ramsbotham, said about refusing to go if the treatment was voluntary. I have had the opportunity of mixing in my own family with people who do this kind of work. They say over and again that the treatment will work only if the person concerned really wants it to work and is committed to it. If they are there because they have been told that they must be there, we can forget it.

The Earl of Onslow: I do not think that any of us would say that to go voluntarily is not better than to go compulsorily—I concede that. I agree with the noble Lord, Lord Judd—not for the first time—that if one really wants to give something up, it is easy. I really wanted to give up smoking and it was dead easy. When I was told that I had to give up Hooch because of health problems, I found it incredibly easy. I wanted to do it, and that is important. I therefore concede that the noble Lord is halfway down the track. Still, I ask what many young people would rather do: would they rather go and be lectured by a reformed alcoholic, employed by the noble Lord, Lord Thomas of Gresford, or go down the pub to drink illegally? The answer in the case of a lot of people is probably the latter. Even though voluntarism is better, it is to those people that one has to apply some pressure.

Lord Bach: That is precisely what this Bill does. We hope that people who have offended and have been caught will understand that one of the reasons they have done so is perhaps because of substance misuse. An order will be made against them; they will be advised to go and voluntarily sort out their problems. Of course, if they do not do that or it is clear to the court that they will not, they will be required to under the terms of the order.
	The contribution of the noble Baroness, Lady Miller, has persuaded me of this: I am conscious that this debate has not been satisfactory for Members of the Committee and I will, if I may, write to all those on the Committee with an explanation of how the voluntary nature of this fits into the order. Perhaps I may say once again to the noble Lord, Lord Thomas of Gresford, I really did not mean to insult him.

Lord Avebury: There is a substantial measure of agreement that has been masked by some sharp interchanges, which do not reflect the general sense of the Committee that alcohol and alcohol-related offences are very serious problems that need to be addressed and that while voluntarism must be given a chance to work, we would not be looking at this paragraph in the schedule if we did not find that ultimately an element of compulsion was necessary.
	I agree entirely with and am a great fan of the pilots taking place in the National Health Service on brief interventions following what Robin Touquet of St Mary's Hospital, Paddington calls "the teachable moment"—that when you get in the A&E department a young person or adult who has had an accident, or someone who is brought before the police for some criminal offence, you can sometimes persuade that person to think about his drinking habits by referring him there and then to an alcohol social worker who will persuade him that these habits have not been useful to him and that he needs to look at his way of life. So voluntarism is essential to the first stage in looking at people who come into the criminal justice system or the health system as a result of the consumption of alcohol. But it is not enough, and that is why we have this provision in the Bill.
	I remain concerned that, as the noble Lord, Lord Kingsland, has pointed out, alcohol treatment accounts for only a tiny fraction of the total money available for drug and alcohol treatment as a whole. The Minister has explained that, while we have always had drug treatment orders, this brings alcohol into line for the first time. I applaud that principle; but then we have to look at the way in which alcohol and drugs treatment are each funded and ask whether that is commensurate with the damage caused by alcohol and drugs within the criminal justice system. My submission is that the funds available are not commensurate and we need to think very carefully before we leave this part of the Bill—perhaps not now, but on Report—about how we structure the help that we are going to give.
	While I am not totally wedded to the idea that the Royal College of Physicians should be in charge of the process, there needs to be a strategy. I accept everything that the Minister said about the need for local control, but that has to be within some sort of framework of validation and you cannot have totally ad hoc designs for these treatments in every local authority or PCT. The noble Lord did not comment on my reference to the Review of the Effectiveness of Treatment of Alcohol Problems just published by the National Treatment Agency. Clearly it knows a lot about how this works. If that review has taken the trouble to look at the problem and to comment on the effectiveness of treatment, surely that should be fed into the system and we should not have PCTs or local authorities going off and doing their own thing in a manner that is not consistent with an overall strategy.
	Let us leave this for the moment and come back to it on Report when we have had a chance to study the Minister's letter. Meanwhile, I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendment No. 20 not moved.]

Lord Hunt of Kings Heath: moved Amendment No. 21:
	Schedule 1, page 160, line 4, leave out from "team" to ", and" in line 5 and insert ", an officer of a local probation board or an officer of a provider of probation services"
	On Question, amendment agreed to.
	[Amendments Nos. 22 and 23 not moved.]

Lord Hunt of Kings Heath: moved Amendments Nos. 24 to 27:
	Schedule 1, page 163, line 27, at end insert—
	"( ) In sub-paragraph (2)—
	(a) the references to a detention and training order include an order made under section 211 of the Armed Forces Act 2006 (c.52) (detention and training orders made by service courts); and(b) the reference to section 103(1)(a) of the Powers of Criminal Courts (Sentencing) Act 2000 (c.6) includes that provision as applied by section 213(1) of the Armed Forces Act 2006 (c.52)."
	Schedule 1, page 165, line 7, leave out "or"
	Schedule 1, page 165, line 8, at end insert "or to an officer of a provider of probation services"
	Schedule 1, page 165, line 22, at end insert "or (as the case may be) a provider of probation services operating in that area"
	On Question, amendments agreed to.

Baroness Linklater of Butterstone: moved Amendment No. 28:
	Schedule 1, page 167, line 13, leave out paragraph 36

Baroness Linklater of Butterstone: The purpose of the amendments in this group is to ensure that the breach of a YRO should be dealt with in the youth court when the offender is under 18, or the magistrates' court if he is over 18. Unless the Crown Court originally imposed the order and the magistrates' court then considered that the breach warranted revocation of the order and resentencing of the young person, the youth or magistrates' court should deal with the breach. The current arrangements are that proceedings for breach of community orders made against children and young people commence in the youth court if they are under 18 or the adult magistrates' court if they are over 18. However, if the order was originally imposed in the Crown Court, the powers of the lower court are limited. Where the breach is such that the youth or magistrates' court considers that the order should be revoked and the young person resentenced, then of course the case must be referred to the Crown Court. But national standards require that court proceedings are initiated for a third unacceptable failure to attend an appointment within a 12-month period. Frequently, breach action does not imply that the young person is making no effort to comply with the order. For instance, a young person on a standard six-month supervision order might keep more than 90 per cent of his or her appointments and still qualify for breach action. In many cases, the most appropriate course for the court is to allow the order to continue, perhaps with some additional punishment. At present, no cases of this sort would be heard in the Crown Court, even if the original order had been made there. However, the Bill provides that where a youth rehabilitation order is imposed in the Crown Court, subsequent breach proceedings should automatically commence in that court, unless the judge at the sentencing hearing specifically ordered that any further proceedings should be in a youth or other magistrates' court. This provision would inevitably lead to a substantial rise in the number of young people processed for breach in the Crown Court, including a significant number whose compliance is such that revocation of the order is not required.
	My concerns about the current proposals are as follows. It would be a disproportionately inefficient use of resources to increase the number of breach cases that are automatically dealt with by the Crown Court. The Bill as drafted would inevitably increase the workload of the Crown Court and lead to delays, when relatively minor breaches could better be dealt with in the youth court. Crown Court proceedings are confusing and intimidating, and unjustified for children when no resentencing is required. Finally, the trial of children in an adult court it is in contravention of Article 30 of CRC, which states that the system for dealing with children should be distinct from that for adults. The UK has been criticised consistently for our provisions and the current proposals still would not comply with our obligations.
	These amendments would ensure that proceedings for breach of a YRO would always start in the youth or adult magistrates' court, as they do now for breach of a community sentence. They would not, however, affect the authority of the Crown Court in serious instances of non-compliance, where revocation is appropriate and the young person is to be resentenced. It would be more suitable in every way if all lesser cases were dealt with in the youth or magistrates' court. I beg to move.

The Earl of Listowel: I wonder what would happen if, for example, a young person left care and moved from his foster parents at the age of 16 to live in something similar to bed-and-breakfast accommodation. If he found himself becoming very lonely and went back to see friends whom he knew he should not spend time with, would just spending time with them be in breach of an order or might their behaviour at that point result in a breach? It might be a circumstance more appropriately dealt with by a lower court, rather than going straight to a higher level of court proceedings.
	Recently a chain of children's homes closed, the implication being that the children lost their stable setting. They might have been there with their peers for 12 months or so and they would suddenly have had to find a new home with new people to adjust to. Therefore, the circumstances in a young person's life can sometimes be very disruptive. I am suggesting that, as long as the young person acknowledges his fault, perhaps the professionals nearest to him can say, "Okay, we will accept it this once and we will not take you straight to the High Court to deal with it". However, I do not know very much about the normal processes here; I am simply giving a couple of examples that may be helpful. I look forward to the Minister's response.

Lord Bach: We are very grateful to the noble Baroness for raising the important issue of a breach of a youth rehabilitation order. As we understand them, the amendments aim to take away from the Crown Court the power to deal with a breach initially and ensure that all proceedings for a breach where the offender is under 18 are commenced in the youth court. These are very important issues and we need to get them right so that the youth rehabilitation order establishes itself as a robust community sentence which enjoys public confidence.
	We note the general desire to restrict the role of the Crown Court in the breach process. However, we believe that we need the flexibility provided in the Bill to allow cases to be transferred to the appropriate court for the breach to be dealt with proportionately. Where a Crown Court has sentenced a young offender to a youth rehabilitation order, I believe it is appropriate and sensible for the Crown Court to have the power to refer any breach or other proceedings back to the youth court.
	The most serious cases involving young people are heard before the Crown Court. Examples of offences where a juvenile can be dealt with by the Crown Court are homicide or very serious offences where an adult would be liable to a maximum sentence of 14 years' imprisonment or more, where a young offender is assessed as dangerous and has been convicted of a sexual or violent offence listed in Schedule 15 to the 2003 Act, or where a young person is jointly charged with an adult.
	If the offence warranted being tried in the Crown Court because of its seriousness and the youth rehabilitation order had been breached on several occasions—the noble Baroness will know better than I do about the warnings set out in the Bill, which we will debate shortly—or there had been one serious breach, it would be right for this to be brought back before the Crown Court, as a custodial sentence for the original offence of more than two years might be necessary and the youth court would not be able to impose that. I rely for that argument on the excellent speech in Committee of the honourable Member in another place, Mr Burrowes, who is on the opposition Front Bench. He said about cases of young persons coming before a Crown Court:
	"Naturally any such case is serious and should only exceptionally be dealt with using a youth rehabilitation order, so we are talking about the exceptional cases that can be dealt with in the community, rather than about someone who has been convicted of a serious offence and dealt with by imprisonment".
	No doubt speaking for his party he says:
	"We are concerned that in such cases the sentencer should have full control of the order and be involved in its enforcement. We therefore welcome Paragraph 35 which gives the Crown court direct discretion and allows it to be involved in the order's enforcement".
	He went on to say,
	"Indeed it could be taken further". [Official Report, Commons, Criminal Justice and Immigration Bill Committee, 25/10/07; col. 258.]
	We are grateful for that support and I hope that support is here tonight as well
	However, it may be best for the breach to be dealt with not by the Crown Court, but by the youth court or the magistrates' court. A young offender may have been dealt with by the Crown Court as a co-defendant of an adult, or another juvenile being dealt with for a more serious offence. Where the Crown Court has made a Youth Rehabilitation Order for the young person, then it might, depending on the circumstances, be entirely proportionate and reasonable for the Crown Court to direct that any further breach proceedings should be dealt with in the youth court.
	It is clearly preferable, in these circumstances, that the Crown Court should have the power to direct that the youth court deal with any proceedings that may arise as a result of breach. Also, the youth court retains the right to refer cases back to the Crown Court, where they deem that the case warrants the more onerous sentencing powers of the higher courts. We have given the Crown Courts this power because we think it would be disproportionate in every instance to retain the case in the Crown Court and impose an unnecessary burden on that higher court. We accept that youth courts have the expertise in dealing with young people. Where the Crown Court wishes to refer the matter to the youth court to deal with, it is right that it should have the power to do so. We also believe it right that the Crown Court retains the power to have breach proceedings brought back before it where it may have taken a risk in making a Youth Rehabilitation Order for a very serious offence. Amendment No. 33 would remove the power to amend the Youth Rehabilitation Order on breach and restrict the youth court to either imposing a fine or resentencing
	In addition, because every case that might be heard in the Crown Court would first have to be heard in a youth court, the matter of bail would have to be considered. Therefore, it could lead to an increase in the use of custody if there are delays in court appearances. We do not believe that that is an acceptable position. For those reasons, having thanked the noble Baroness for raising this important issue, we ask her to withdraw her amendment.

Baroness Linklater of Butterstone: I thank the noble Lord for that explanation. Where we differ is really in a matter of emphasis. Clearly we have absolutely no quarrel if any matters that are serious should warrant an appearance in the Crown Court. It is a matter of dealing with breaches where the matter is not so serious, retaining it within the ambit of the youth or magistrates' court—where it could be more appropriately dealt with—as well as relieving the Crown Court of what is otherwise a matter which should not necessarily detain it.
	I shall read carefully the Minister's reasons and, for the moment, beg leave to withdraw my amendment.

Amendment, by leave, withdrawn.
	Schedule 1, as amended, agreed to.
	Clause 2 agreed to.
	Schedule 2 [Breach, revocation or amendment of youth rehabilitation orders]:

Lord Kingsland: moved Amendment No. 29:
	Schedule 2, page 168, line 21, leave out paragraphs 3 and 4

Lord Kingsland: National standards for breach proceedings require the responsible officers to issue warnings for unreasonable instances of non-compliance and to initiate breach proceedings where there are three unreasonable failures within a 12-month period. Currently, there is discretion to depart from this in exceptional cases and with the authorisation of the youth offending team manager. The Bill removes that discretion.
	What evidence is there that this change is necessary? Statistics suggest that youth offending teams already take non-compliance very seriously. Between 2000 and 2004, for instance, the proportion of supervision orders returned to court for breach action rose from 7 per cent to 21 per cent. It is not accordingly clear that there is any need to legislate to make enforcement of orders a statutory duty.
	I suggest to the Minister that these provisions are damaging in a number of respects. First, they potentially harm the relationship between the YOT staff and the offender. Effective work with young people in trouble is dependent on the establishment of a good relationship between the staff and the young people for whom they have supervisory responsibility. Secondly, the change will lead to a significant increase in court workload, with no evidence of any corresponding advantage. Thirdly, it will lead to court appearances in many circumstances where an offender is genuinely trying to comply but is failing. Fourthly, it will inevitably lead to an increase in the number of children in custody. Fifthly, it will reduce or expunge entirely a number of innovative practices that have grown on the flexibility of the current rules.
	Moreover, the Bill will lead to the anomaly of YROs being subject to statutory breach but reparation orders and post-custody supervision for detention and training orders continuing to be governed by national standards with YOT discretion, despite being for more serious offences. I add that warnings of these breaches should always be made in writing and there should always be clear evidence that the warnings have been received by the individual who is subject to them. I beg to move.

The Earl of Listowel: I think that the Minister indicated that he might write to me on the comments that I made on the preceding amendments, which I think are also relevant to this amendment. I am not sure whether I understood the Minister's gesture, but I would be grateful for a response. The concerns that I expressed hold here, too, and I would like reassurance that there will be sufficient flexibility. For instance, if a child has a bereavement or his parents separate, there should be flexibility to enable a discussion in which people can say, "Your behaviour has deteriorated. Why? What's going on here? Is it necessary for us to come down very hard?".

Lord Bach: We are always happy to write to the noble Earl, on this occasion as on any other.
	I am grateful to the noble Lord, Lord Kingsland, for putting his important points so succinctly. This is an issue on which we disagree, as I think was shown in the debate in another place. I shall try to explain why. We think that placing national standards for breaches on the face of the Bill is important to ensure that everyone—courts, young people, sentencers and the general public—is aware of the standards that apply to community orders and the consequences of inappropriate behaviour. If there were no flexibility in these standards, the noble Lord would have a strong point, but I argue that the degree of flexibility answers his concerns.
	Paragraph 3 of Schedule 2 states:
	"If the responsible officer is of the opinion that the offender has failed without reasonable excuse to comply with the youth rehabilitation order, the responsible officer must give the offender warning".
	It follows that if there is a reasonable excuse, he does not have to give the offender a warning.
	The Bill sets a limit of two formal warnings that may be issued to a young offender in a 12-month period following which, on a third breach in that period, proceedings must be instituted. I repeat that a warning cannot be given unless there is an unreasonable breach. It also allows for immediate court action to be taken by the responsible officer when the breach is so serious that it warrants immediate court action. I do not think that anyone would disagree with that.
	The provisions reflect the current national standards of the Youth Justice Board for breaches. They are in the Bill as clear evidence—this is important to the public—that breaches will be pursued vigorously and a consistent standard applied nationally. It was only a few weeks ago when a colleague of the noble Lord, Lord Kingsland, in another place, the honourable Edward Leigh, in his capacity as chairman of the Public Accounts Committee said something that was quoted in the newspapers. The Times states:
	"Too often offenders who have been given a community order are escaping elements of their punishment and rehabilitation. This is because the Probation Service, which manages offenders serving the orders, often fails to ensure all elements of an order are completed before it expires. In fact, the service does not know how many orders have not been completed, nor how many offenders break the terms of their orders".
	We do not have to agree with Mr Leigh, but that is what he in his important position said, and it may be, unless we are careful, what the general public begin to feel. We cannot have the public losing confidence in community sentences. Once that confidence evaporates—

Baroness Falkner of Margravine: That argument is pernicious. Mr Edward Leigh was obviously pointing to a failure of the system, but the Minister seems to be attributing the flexibility in the system as the reason, which we all want to keep, when it is the system that does not work. I imagine that it is the Government's responsibility to make the system work, and not necessarily to use a sledgehammer to change the law to make it work. The law is there and we believe that it works. If it is not working because certain parts of the executive agencies are not working, that problem must be resolved. It is counterintuitive.

Lord Bach: I take that point, but one of the problems that the National Audit Office pointed out—I am not saying that I agree with the language used by Mr Leigh—was that breaches sometimes were not dealt with. Breaches could occur but no one took any notice of them.

The Earl of Onslow: If breaches occur and no one takes any notice, any number of Acts of Parliament can be written, but if no one pays any attention to the law, the muddle does not go away by creating another law. The muddle goes away by getting people to get their act together. The noble Lord was admitting that acts were not got together. The noble Baroness was saying exactly what I am saying, although she did so in possibly rather more delicate and refined terms—that if something is not working, the Government should not immediately rush to the statute book to change it. One of their faults is that they have been doing that for 10 years. They should get the system to work before changing the law.

Lord Bach: We are putting the national standards in the Bill, so that everyone knows where they stand. The Youth Justice Board's current national standards are flexible, as I shall come to in a moment. My argument is that it is essential that community sentences are, and are seen to be, rigorously monitored and provide confidence—

The Earl of Onslow: "It is essential that they should be rigorously monitored"? The noble Lord has just said that they are not being rigorously monitored. Changing the law and putting it in the Bill will not make one jot or tittle of difference to the amount of rigorous monitoring that will go on.

Lord Bach: It will not change it in itself, but it will make one jot of difference. They have to be rigorously monitored and they have to provide confidence. That is the point that I am trying to get across—that enforcement action will be taken when necessary. That is what we do by writing it into the Bill, so that everyone knows where they stand. We are determined to ensure that the youth rehabilitation order and, indeed, all community penalties, are rigorously enforced, as we are determined to ensure that they are widely used by the courts. We want them to be widely used by the courts and accepted as robust by the public, as do the noble Earl and the noble Baroness.
	It is often a challenge for some young people to comply with some of the most basic elements of a community order—the noble Earl, Lord Listowel, made that point clearly—such as being somewhere at a set time. That is recognised in the flexibility allowed for in the breach process, as the responsible officer makes the decision about what is a reasonable excuse. That allows that officer to take account of the young person's age and maturity. It also allows the officer to take into consideration the fact that the young person may be dependent on a third party—for example, a parent—to get them to an appointment. I assure the Committee that our expectations are that current practice, as governed by national standards, will and should remain unchanged.
	Youth Justice Board national standards provide more detailed guidance to responsible officers to help them assess what is a reasonable excuse. We all know that there has to be a balance between enforcement and local management discretion, especially where young people are concerned, but action must be taken where the breaches can no longer be considered as minor infringements—where there is no reasonable cause for them.
	This is not about alarm clocks failing to be set at the right time for an early appointment; this is not about a young person missing an appointment because he or she is in hospital; this is not about punishing young people because their parent or guardian could not or would not drive them to an appointment. This is about those occasions where a young person refuses to engage with the terms of their order. That is why local discretion is built into the procedure. Local youth offending team workers will remain responsible for the orders. It is they who know how best to manage compliance based on a number of factors which need to be taken into account, and they will have the knowledge of the young person for whom they are responsible.
	Our case is that we must ensure that there is a common procedure which is clear and transparent to all. We are satisfied that there are sufficient safeguards to avoid young offenders being returned to court for minor infringements, and we believe it right and appropriate that a clear standard be set out in the Bill on when breach action must be taken.
	The noble Lord, Lord Kingsland, said that he believed that that would inevitably result in more court appearances and more young people remanded in custody. All that the breach arrangements do is codify existing national standards. We do not expect there to be any change to existing practice. As I have repeated several times, the arrangements allow for reasonable excuse, which can be taken into account. Therefore, we do not expect the result of including that in the Bill to be additional demands on courts or an increase in the use of custody for breach. I am sorry that the noble Lord and I are probably not in agreement on that. I have attempted to explain why we do not agree with the amendment.

Baroness Falkner of Margravine: The hour is late, and I do not want to take up too much time, but there is one aspect of what the Minister said that is not entirely clear to me.
	As we understand it, the Bill would prescribe the circumstances under which the responsible officer must issue warnings and initiate breach proceedings. Breach would therefore become a statutory duty with no scope for practitioner, manager or manager discretion. I hear the Minister saying that there will be discretion, but can I point out the slight contradiction in the position that we have heard today?
	The first thing we had when we started was the amendment of the noble Baroness, Lady Stern, on the principles of the criminal justice system. We were told eloquently by the noble Lord, Lord Hunt, that we could not put that in the Bill because it would circumscribe possible action and limit the flexibility inherent in the system. We now hear that the Government want to limit that flexibility. It seems to me that we are coming with different voices to very similar arguments. I will not go on about that because the hour is late, but I expect we will return to that somewhat later.

Lord Kingsland: I thank all noble Lords who have participated in the debate. The Minister said that the new provision reflected national standards, but I thought that the current situation was a reflection of national standards.
	I am very much in debt to the noble Baroness, Lady Falkner, for two reasons. First, she felicitously explained that the community order system does not work at present for reasons that have nothing whatever to do with the flexibility of the way these breaches are approached. I cannot for the life of me see how the change that the Government are proposing in that context can change that underlying and melancholy fact.
	I am also in her debt for bringing out a point that was made earlier during our debate on the amendment of the noble Baroness, Lady Stern, to which, as the noble Baroness, Lady Falkner, rightly reflected, the noble Lord, Lord Hunt, had assented—that the Government are committed to using custody as a last resort. In the course of that debate, I remember saying to the noble Baroness, Lady Stern, that her amendment has to have bite; otherwise she will find that, however one can talk generally about the desirability of minimising custody, if one looks at the detail one will see that that principle is undermined at every turn. Here is a very good example of that principle being undermined, and the Government, despite their general concurrence with what the noble Baroness said, are the guilty party.
	I also disagree with the Minister's interpretation of the schedule provision on page 168. I found his argument uncharacteristically unconvincing. He is removing an existing discretion that has been responsibly applied and extremely valuable to the way in which these breaches are dealt with. Although I am going to withdraw the amendment now in Committee, I think that I will return to it on Report. I beg leave to withdraw the amendment.

Amendment, by leave, withdrawn.
	[Amendments Nos. 30 and 31 not moved.]

Lord Bach: I beg to move that the House do now resume.

Moved accordingly, and, on Question, Motion agreed to.
	House resumed.
	House adjourned at 9.54 pm.
	Correction
	Due to an error in the production process, five minutes of copy were omitted from the report of the Grand Committee on the Employment Bill yesterday. In col. GC 478, the following two contributions should have appeared immediately before the speech of Lord Henley.

Baroness Gardner of Parkes: [ 6.30 pm ] This is a very interesting amendment and in many ways I am very much for it. However, I am concerned about the point that the noble Baroness made about informed consent and having been able to consult someone. That was one of my major worries during my time in tribunals. People set themselves up as "employment consultants"—I suppose that I could describe them as cowboys. They found their clients the moment that the case was filed, because it is on public record. It used to be that if they went to Bury St Edmunds they could see the total case—every word of it; now that it is all on line they can probably only get the name, address and contact. Even so, they then tout for business, and very often the person approached by those consultants has no idea that they are not an authority on anything and have no real experience or understanding of the case. We saw case after case in which self-appointed so-called experts did very badly for their clients. They were not legally qualified, but the person employing them had no idea whether they were or not. The legal qualification may not be so necessary—and now these people are regulated. If you receive a fee, you are meant to be regulated. But there is still no way in which to confirm for the simple-type applicant that the person is or is not registered; they do not know that they are supposed to be, so they do not check.
	That really concerns me. It is very important, with a proposal such as this one, in situations where people are relying on independent advice, that there should be a clear way in which to establish that the independent advice is at least soundly based.

Lord Wedderburn of Charlton: What the noble Baroness has just said makes me realise that with our customary moderation we have gone much too far with our amendments.
	I shall make two points, first on Amendment No. 13 and then on Amendment No. 12. Amendment No. 13 should probably be couched in terms that an employee's consent is valid only when he or she has taken independent advice of someone with suitable qualifications. That appears elsewhere in employment law, but the thing has got so complicated these days that I could not find it in the Butterworth guide. Somewhere we have a definition of qualified advice for similar purposes, I am sure, and no doubt the Minister can tell me where it is. At any rate, Amendment No. 13 is much too modest and timid. An employee's consent should not be valid when he or she has just been leant on or advised by someone who is not at all competent to give the advice. Consent should be backed up by qualified independent advice—and I am sure that we will look at that very carefully before Report.
	Amendment No. 12 is much more suitable to Committee. I just do not understand why lines 17 and 18 are in the Bill; the amendment suggests that they should be omitted. I refer to new subsection (3AA)(b), which tells us that,
	"employment tribunal procedure regulations... may only authorise the determination of proceedings without any hearing... where—
	(a) all the parties to the proceedings consent"—
	and we have just said that it must be real consent and properly advised; and,
	"(b) each party to the proceedings has the right to request a hearing."
	I do not understand what that adds. When a party consents to the determination without a hearing, if properly couched, the paragraph would take effect; or each party has the right to request a hearing. It is always useful to turn it into a negative: when would the party not have the right to request a hearing? That is a very simple question, and there must be a simple answer which, in my present rather tired state, I have been unable to see. If there is no answer, the paragraph should be omitted because it does not add anything.